Drones – The Need For Preventive Legislation

The protection of human rights is the most significant and important task for a modern State and privacy is one of the most important of such rights. The erosion of these rights by the use of drones has already been addressed. 

by Dr Ruwantissa Abeyratne

( June 9, 2015, Montreal, Sri Lanka Guardian) The Editorial of the Daily News of 6 June had an interesting take on the introduction of drones to Sri Lanka, in the wake of a camera equipped drone descending on a private property in Ahangama. The Editorial, which admitted that laws pertaining to drones in Sri Lanka are not clear and that there is a clear need to adopt laws pertaining to an inevitable phenomenon in Sri Lanka said: “If drones become affordable to the point where everyone can fly one, there will be a need for rules to govern airspace for drones. NASA of US is planning the first tests of an air traffic control system for drones, with cellular operator Verizon scheduled to introduce a concept for using cell coverage for data, navigation, surveillance and tracking of drones by 2017. The phone company hopes to finalize its technology by 2019″.

The immediate issue for Sri Lanka, with the basic drone that flies very low altitudes carrying cameras, is  privacy of the individual although in time to come, it will be necessary to look at other areas such as the commercial operation of drones and the threat of security of the individual.

In  a newspaper (also called the Daily News)  in the United States a recent editorial ran as follows: “The first time a Drone flies over a Silicon Valley neighborhood it will be a novelty. The second, third and fourth flyovers will generate legitimate questions about privacy, public safety and future applications of their use…protecting the public’s privacy should be the FAA (Federal Aviation Authority)’s first priority. The National Security Agency’s assaults on basic privacy rights make it essential that the FAA spell out what constitutes unwarranted intrusions into our lives. The FAA rules allow the use of data gathered by domestic drones for any authorized purpose.”

The United States Department of Defence defines a drone (unmanned aircraft)  as “a powered aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, can fly autonomously or be piloted remotely, can be expendable or recoverable, and carry a lethal or non-lethal payload”.  Drones are primarily used for military purposes but their commercial use in on the rise. They are often used for 3D’s i.e. ‘dull, dirty, and dangerous jobs.’ Besides, drones are used in research and development of the aeronautical areas such as airborne testing under the real conditions. There are many advantages of drones as compared to its counterpart manned aircrafts. Less operating costs, low fuel and maintenance costs, cheaper insurance and low salaries for the ground based personnel all translate into a lucrative monetary benefits to pursue drones for commercial purposes. Due to financial benefits associated with the drone  it is likely that the drone  rental business will soon sell their services. Manned helicopters have been used in South Africa and Australia to monitor herds during hot weather and difficult terrains but it may save time and money if drones are used to keep track of these herds.  A drone  could be in hands of news channels and broadcasting companies for covering emergency events, real-time sports events, monitoring traffic accidents and war zones. For the first time, the United Nations has ordered surveillance drones from an Italian firm for its peacekeeping missions in Congo and diplomats hope that if successful the drones could be deployed for missions in Ivory Coast and South Sudan.

The drones we are discussing are self piloted or remotely piloted aircraft that can carry cameras, sensors, communications equipment or other payloads. They have been used to conduct reconnaissance and intelligence-gathering for nearly sixty years (since the 1950s).  Recently the FAA introduced rules for drones operated by civilians.    According to these rules, operators can fly drones that weigh less than 55 pounds, beneath an altitude of 500 feet, outside of flight paths, not near airports and not faster than 100 mph. Most importantly, the operator has to keep their drone within line of sight.

The purpose of these rules is to allow drones to be used  in aerial photography for real estate, transmission and infrastructure inspection and other purposes. But the rules will limit, at the present time,  drone use for delivery, which both Amazon and Google are looking to move into in the future.

Similar to the introduction into Sri Lanka of various sophisticated technological developments, the drones will, in a matter of a short time, become prolific in the country. The role played by technology in modern day commercial transactions has affected a large number of activities pertaining to human interaction.  In this context, the indiscriminate use of drones would erode the four basic rights of an individual to his/her privacy.  They relate to the use of data gathered, whether they be visual or auditory: the right of an individual to determine what information about oneself to share with others, and to control the disclosure of personal data; the right of an individual to know what data is disclosed, and what data is collected and where such is stored when the data in question pertains to that individual;  the right to dispute incomplete or inaccurate data; and the right of people who have a legitimate right to know in order to maintain the health and safety of society and to monitor and evaluate the activities of government.

It is important to distinguish between drones and model aircraft.  For instance, Canada has made that clear distinction in its rules and has set a clear distinction  between unmanned aerial vehicles” (commercial use) and model aircraft (recreational use). The definition of a model aircraft: less than 77.2 pounds, individually owned (no companies allowed) and not profit-seeking. If an aircraft meets these conditions, it is considered a recreational vehicle, making it subject to lower scrutiny. Aircraft that don’t meet this criteria are officially “unmanned aerial vehicles” and require Special Flight Operations certificates.

The United Kingdom has set a limit of 20 kilograms as the maximum weight that an unmanned aircraft can be termed a “small drone” which can fly under prescribed circumstances.  The European Aviation Safety Agency (EASA) which sets common rules on aviation for all EU member States has prescribed that one needs a license for any drone to be operated in Europe Such certification is only granted on a case-by-case basis under the EASA’s rules,

Getting back to privacy, it is incontrovertible that the individual  has a right to decide what information about oneself to share with others and more importantly, to know what data is collected about him.  This right is balanced by the right of a society to collect data about individuals that belong to it so that the orderly running of government is ensured.

The protection of human rights is the most significant and important task for a modern State and privacy is one of the most important of such rights. The erosion of these rights by the use of drones has already been addressed.  Labelled as a looming threat by The Economist of 19 March 2015, drones and their usage have been judicially questioned on the sensitive dichotomy of a single instance of use that erodes the privacy of the individual and persistent usage.   Another consideration has been the location – as to whether the incursion occurs in a public place or a private premises, where one can have reasonable expectation of privacy.   The US Supreme Court held in 1967 that an instrumentality of the State cannot eavesdrop on conversations in telephone booths without a warrant. However, under the current sophistication of technology and big data, such boundaries can be blurred. It is noteworthy that  the US Supreme court held in 2012 that the principle of causation by circumstance was sufficient to establish an erosion of privacy.

Sri Lanka has enough best practices around the world to set about considering seriously a timely legislative enactment that would be in place when drones proliferate its skies.  This should cover not only individual rights but also the safety and security of the State as well as the airspace of Sri Lanka, where aviation – both commercial and military – will be protected as well.