Drones use and misuse attracting more attention…reform required but will it come

August 20, 2017 |

The misuse of drones, or to be more precise unmanned aerial vehicles, has always been a real problem since they moved from military to commercial and then to everyday use and their capacity grew from a difficult to control curiosity to a highly sophisticated aerial vehicle which can mount powerful cameras and videos on stable platforms.  Along with the incredible benefits that have come from the commercial use of drones has come real and potential privacy intrusive activity.  The lack of regulation has been apparent from the outset.

The legal issues and gaps in the law have been apparent for a long time ( I have posted on them here, here, here, here, here, here, here, here and here for example) For some reason this problem has in the last few days attracted the attention of both the Australian with Drone reforms needed to protect privacy  and the Canberra Times with ‘Highly intrusive’: Drone complaints on the rise in Canberra and its editorial  Drone misuse in Canberra a real concern for all. The articles cover well worn ground but are welcome nevertheless.

Drones are a challenge in every jurisdiction with the response being generally slow and fitful.  In the United States  legislatures at a State level have to a greater and lesser degree been quite active in trying to fill the gaps that the Federal Government has not addressed.  That said The US military have just been authorised to shoot down drones that fly over military bases.

In Australia the legislative response remains non existent notwithstanding strong recommendations to do something about this growing and chronic problem.  On 14 July 2014 the House of Representatives Standing Committee on Social Policy and Legal Affiars tabled a report of its inquiry into drones and the regulation of air safety and privacy.  The recommendations were  and produced a comprehensive report.

The recommendations include:

Recommendation 3

The Committee recommends that the Australian Government consider introducing legislation by July 2015 which provides protection against privacy-invasive technologies (including remotely piloted aircraft), with particular emphasis on protecting against intrusions on a person’s seclusion or private affairs.

The Committee recommends that in considering the type and extent of protection to be afforded, the Government consider giving effect to the Australian Law Reform Commission’s proposal for the creation of a tort of serious invasion of privacy, or include alternate measures to achieve similar outcomes, with respect to invasive technologies including remotely piloted aircraft.

Recommendation 4

The Committee recommends that, at the late-2014 meeting of COAG’s Law, Crime and Community Safety Council, the Australian Government initiate action to simplify Australia’s privacy regime by introducing harmonised Australia-wide surveillance laws that cover the use of:

? listening devices
? optical surveillance devices
? data surveillance devices, and ? tracking devices

The unified regime should contain technology neutral definitions of the kinds of surveillance devices, and should not provide fewer protections in any state or territory than presently exist.

Recommendation 5

The Committee recommends that the Australian Government consider the measures operating to regulate the use or potential use of RPAs by Commonwealth law enforcement agencies for surveillance purposes in circumstances where that use may give rise to issues regarding a person’s seclusion or private affairs. This consideration should involve both assessment of the adequacy of presently existing internal practices and procedures of relevant Commonwealth law enforcement agencies, as well as the adequacy of relevant provisions of the Surveillance Devices Act 2004 (Cth) relating but not limited to warrant provisions.

Further, the Committee recommends that the Australian Government initiate action at COAG’s Law, Crime and Community Safety Council to harmonise what may be determined to be an appropriate and approved use of RPAs by law enforcement agencies across jurisdictions.

The Government has rejected a tort of privacy despite the constant and diverse recommendations over the years from parliamentary committees, the Australian Law Reform Commission, twice, and from each of the New South Wales Law Reform Commission and the Victorian Law Reform Commission.

The Australian article provides:

Rapid technological developments have made drones far more accessible and widely used recreationally and commercially. As a result, drones pose a serious threat to personal privacy.

Serious invasions of privacy range from inadvertent surveillance and collection of personal information through photographs to criminal conduct such as stalking. The Australian Privacy Commissioner, Timothy Pilgrim, has said that the community is becoming more aware and concerned about drone use and its associated privacy risks.

The Australian Civil Aviation Safety Authority is Australia’s aviation safety regulator but its responsibility is limited to aviation safety; drone privacy issues do not fall within its purview. It will not investigate breaches of privacy.

The Office of the Australian Information Commission is the Australian government agency primarily responsible for privacy. Individuals covered by the Commonwealth Privacy Act 1988 can make complaints to the OAIC.

However, drone privacy is only protected to a limited extent at the federal, state and territory levels. The Privacy Act is the primary statute that regulates privacy in Australia. However, there are issues in terms of its application to the regulation of drones.

First, it predominantly focuses on protecting the appropriate handling of ‘‘personal information’’ contained in a record rather than behavioural privacy protection. This has been acknowledged by Dr Roger Clark from the Australian Privacy Foundation. The Privacy Act only applies where drones collect footage containing identifying information.

More significantly, the Privacy Act only regulates Australian government agencies and some private sector organisations. Commissioner Pilgrim has recognised that drones operated by individuals are not subject to privacy laws. Small businesses with an annual turnover of less than $3 million are also largely unregulated, which poses serious problems.

The increasing availability of low-cost drones means that in practice, drones are, and will be, largely operated by individuals and small businesses. Current privacy laws do not provide overarching protection to Australians; there is no avenue of redress if harm occurs in these circumstances.

Some states and territories have enacted privacy laws. However, these also generally apply only to government agency activities.

Further, anti-stalking laws only apply in limited circumstances. For example, in Queensland, it is illegal to record someone without their consent if they are in a private place or conducting a private act.

Tort law provides limited protection where drones trespass or injure a person or property.

Some states and territories regulate the public use of surveillance devices. The scope of these laws, and their application to drones, varies considerably between jurisdictions. In Western Australia, inadvertent recording of private behaviour that occurs through lawful aerial photography is exempt.

Tasmanian and Queensland legislation only protects against devices that make audio recordings. Other states’ laws are also concerned with visual recordings.

Privacy laws in Australia are deficient in protecting against the invasive use of drones. Surveillance and tort laws do not aid in addressing this deficiency.

There have been persistent calls for privacy law reform, and change is required. In the 2014 Eyes in the Sky report, the Commonwealth House of Representatives standing committee warned that drones have the potential to pose a serious threat to the privacy of Australians by intruding — intentionally or inadvertently — on private personal or business activities.

The standing committee recommended — as did the Australian Law Reform Commission that same year — the reform of laws on harassment and stalking by introducing a tort of privacy for unreasonable interference in private spaces. This would address interruption of privacy and misuse of personal information.

The Law Reform Commission proposed that this tort of privacy should only apply to serious invasions of privacy in order to balance the right to privacy with freedom of expression, open justice, and national security. Commissioner Pilgrim said this should be achieved by extending the existing privacy complaint framework to actions by individuals where there are serious invasions of privacy.

Commissioner Pilgrim additionally suggested developing Australian Privacy Principles (APPs) with respect to drone use. Registered APP codes are binding and provide industries already covered by the Privacy Act with additional rules for handling personal information. Where there is non-compliance, entities covered by APP codes are subject to all regulatory powers available in the Privacy Act.

In 2014, the standing committee recognised that it is imperative to amend privacy laws to more adequately address drone privacy issues. To date, however, there has been no such amendment.

In December last year, the Australian government rejected the standing committee’s suggestion of a new tort of privacy. The government considered that it would increase the regulatory burden and that it is sufficient for individuals covered by the Privacy Act to report to the OAIC.

Developments in technology and the vastly increasing use of drones present serious privacy issues. Without more comprehensive regulation, Australia’s privacy protections will remain insufficient to balance drone use and the privacy of citizens.

 

 

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