ABC story on drones, technology, lack of regulation and privacy threat raises relevant issues that have been around since drones started flying

July 15, 2022 |

The ABC’s quite lengthy piece Drone regulation ‘not keeping up with technology’, lawyers concerned about stalking risks highlights the capability of drones to be used to invade privacy, be used for overt and covert surveillance and be used as an instrument of stalking.  The problem has been present for many years and nothing meaningful has been done to address it.  On 14 July 2014 the House of Representatives Standing Committee on Social Policy and Legal Affairs tabled a report Eyes in the Sky about drone technology with:

  • Chapter 2 titled Our Drone Future
  • Chapter 2 – Safety in the air
  • Chapter 4 – Drones and Privacy

I did a post, House of Representatives hands down report on drones, “Eyes in the Sky”, on the day it was tabled. 

That was 6 years ago to the day plus one.  The recommendations to enhance privacy protection were ignored.  Recommendations 3 – 6  (at pages 48 – 50 of the Report) recommended:

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.

Recommendation 6
The Committee recommends that the Australian Government coordinate with the Civil Aviation Safety Authority and the Australian Privacy Commissioner to review the adequacy of the privacy and air safety regimes in relation to remotely piloted aircraft, highlighting any regulatory issues and future areas of action. This review should be
publicly released by June 2016.

The recommendations couldn’t be clearer.  Recommendation 3 specifically called for a tort of serious invasion of privacy.  That is consistent with 2 Australian Law Reform Commission reports since 2008.  And nothing has been done. 

The ABC Report provides:

When a distressed Gold Coast holiday-maker tried to take legal action after finding a “drone peeping Tom” spying on her in the shower, her lawyer advised there was little she could do.

Gold Coast criminal lawyer Bill Potts said the “laws are loose” when it comes to protecting people from privacy breaches involving small drones.

Despite laws under the Privacy Act around stalking and trespass, Mr Potts said the burden of proving a drone operator “intended” to take a “sneak peek”, rather than doing it accidentally, was difficult.

“My client, who was in a high-rise building in Main Beach, looked out the window while she was having a shower to see a drone hovering about 10 feet off the window,” he said.

“She was clearly washing naked in the shower and she slammed the window immediately.

“She went downstairs to speak to the management of the holiday rental and was told the building was being surveilled by drone for maintenance reasons.

“Her concern was she had no warning and that the drone operator had done it deliberately.

Mr Potts said the building’s managers just “shrugged their shoulders” and nothing was done.

“Unfortunately we could have made a complaint to the police about stalking but it has to be actually an intentional act and in this case that was a grey area,” he said.

“So in these types of cases where there is a lack of clarity, a lack of good law certainly, a lack of training, no action could be taken.

“And even though she had suspicion, this operator was acting in an untoward and salacious manner, he had the perfect cover to say no, he was doing another job, it was something that was inadvertent.”

Drone spying complaints growing

The Civil Aviation Safety Authority (CASA) said it received about 3,000 complaints a year, but many did not want to speak publicly for fear of being further harassed.

In a global collaboration, lawyer and Queensland University of Technology professor Julie-Anne Tarr co-authored a book looking into drone law and policy.

She said the law had not kept up with the fast-paced changes in drone technology and warned Queensland lagged behind others states to protect people’s privacy.

She said part of the problem was a relaxation of regulations exempting recreational drones under certain weight limits from licensing and notice requirements.

From mid-July 2023, a new registration and accreditation requirement through CASA will apply to all drones operated recreationally that weigh more than 250 grams.

“The use of privately owned drones is one of the black holes of legislation.”

She said with many small drones able to operate up to 10 kilometres away from an operator, it could often be hard to figure out who was “hovering stalking”.

Professor Tarr said Australia needed national safety and privacy legislation that brought consistency around the burgeoning use of drones by government, corporate and private citizens.

“This means noise, personal privacy rights and criminal uses need an urgent response,” she said.

“Many types of drones are, and may remain, untraceable. Tiny drones are state-of-the-art commercial devices that are capable of Hollywood-grade filming and capable of significant damage if that is what the operator’s aim is.

“You can buy a drone at a garage sale or on eBay or even 3D print your own.

 “It a huge challenge for regulators to even begin to manage this need.”

Professor Tarr said the state’s Privacy Act dated back to the early 1970s and did not account for “optical instruments” like drones, or deal with data tracking.

“We need more teeth in legislation. Right now we have a hodge-podge of language, absolute hodge-podge, none of the states have any consistency across this,” she said.

“Quite apart from standardised safety, privacy and data protection laws, we need owner registration, third-party insurance for drone operators and/or owners, and the legal requirement to keep an activity log.”

DV fears as ‘unlawful stalking’ is hard to prove

Women’s domestic violence experts are concerned the loopholes could also be exploited by an abusive former partner who could potentially menace with a camera-enabled drone.

Women’s Legal Service lawyer Julie Sarkozi is very concerned.

“When one looks at the existing definition of unlawful stalking in Queensland, what the first element of that offence is, that the person who is doing the unlawful stalking has to [take action] that intentionally is directed at a person,” she said.

“So you can imagine if I am flying a device that has a very broad scope and it might be quite difficult for a jury to believe that the actual pictures taken were intentionally directed at a person.

“And in this case, it might be the person they are trying to harass.

“Excuses are easy — ‘Oh that I was just looking at the beach, I was just looking at the road, I was just looking at the neighbourhood.’

“In fact, where there are other people around I argue that it would be almost impossible to convict for someone unlawfully stalking you using a drone.

She said the Domestic and Family Violence Act does refer to “surveillance equipment”.

“So they cover more modern forms of technology, but it is unclear if drones would fall into the definition that is used in that Act,” she said.

“There is also no explicit use of the word ‘drone-type surveillance’ in the Women’s Safety and Justice Taskforce, so there is merit in raising the absence of this within the context of a legal loophole.”

Logan a ‘test bed’ for privacy laws 

Google’s parent company Alphabet has turned Logan, south of Brisbane, into “the drone delivery capital of the world”, running a trial and thousands of test flights.

Wing Australia spokesman Jesse Suskin said there had been no privacy complaints after they had delivered a quarter of a million packages, from burgers to medication.

Camera-mounted drones can be bought and flown in Australia without a licence.(Pixabay: succo, CC0)

“It is tough because it is a new and emerging space, but our drones do not rely on high-resolution imagery so there is no live feed of any imagery from the drone going back to a pilot station,” Mr Suskin said.

“Because we knew we were flying over houses but wanted acceptance from the community, we had to have something that did not rely on high-quality imagery to navigate.

“So there is not a pilot just looking down with a camera zooming left to right.”

He said the cameras on Wing drones were only ever activated in a navigation emergency, and even then it was “low-grade greyscale vision” so people were not recognisable.

A spokesman for the Queensland Privacy Commissioner said privately operated drones are not regulated by local privacy laws.

“The Office of the Information Commissioner (OIC) welcomes law reform in this area to strengthen privacy protections and modernise Queensland’s laws to regulate the use of surveillance,” he said.

“OIC provided a submission to a Queensland Law Reform Commission review, noting the gaps in the current legislative framework to protect individuals from threats posed to their privacy by existing and emerging technologies with advanced image, tracking and audio capabilities.”

A second report into drone law and its loopholes is yet to be released. 

It is welcome that Professor Tarr has co-authored a book on Drone Law and Policy. (ABC News: Lexy Hamilton-Smith)

Leave a Reply

Verified by MonsterInsights