Remotely-Piloted Aircraft Systems (RPAs) or drones as they are most commonly known, are remotely piloted aircraft devices which have gone from being military-grade technology to EBay-available gadgets in the span of a few years. The European Commission expects this industry to create some 150,000 new jobs in the EU alone by 2050.
The technological capabilities of drones has been tried and tested in military applications, however the increasingly cheap and available technology has also opened the doors to the civil and commercial application of drone technology. Drones today are being used in a wide range of tasks which were either previously unthinkable or which would otherwise require manned aircraft such as helicopters.
In fact, new drone technology is replacing the use of manned-aircraft particularly in cases of ‘3D’ tasks which are too ‘dull, dirty or dangerous’ for manned aircraft. RPAs are currently being used for an astounding variety of commercial and civil applications. While the most obvious use of drones includes a variety of photographic, video and filming applications, their use also has a wide scientific application for tasks such as wind energy monitoring, pipeline inspection, archaeological site mapping, wildlife protection and precision agriculture to name a few.
A number of legal issues arise from the widespread use of drones, varying from regulatory and licensing matters, to safety, liability and privacy issues and concerns. It is however important to keep in mind that ‘drone’ technology in itself is of no threat to privacy and data – the drone in its most basic composition is purely a flying machine which can be remotely piloted.
The privacy threats are created by the variety of data-processing equipment which can be fitted on drones such as smart cameras, thermal equipment, radio frequency, detection equipment, and tracking devices. This equipment, coupled with the drone’s excellent manoeuvrability and its ability to remain unseen and unheard, are creating novel legal scenarios which understandably raise concerns.
Drones with the right equipment can easily be manoeuvred over fences, walls and obstacles and into courtyards, gardens or terraces and be used to record conversations, track and follow a particular target undetected, sense motion or provide the controller with thermal or infrared footage which can be obtained even through walls and ceilings.
While the cautious regulation of such drones is a commendable move in the right direction, privacy-related issues remain unaddressed
Compared to a normal CCTV camera, a drone can be controlled remotely, change angle, intrude private property and obtain unique vantage points, creating a veritable threat and a major interference to the most intimate sphere of a person’s privacy.
From a data protection perspective, the use of drones poses challenges to the legal requirements and criteria for processing, which are the cornerstone of European data protection law currently emanating from Directive 95/46/EC.
How does a drone user obtain the ‘unambiguous consent’ of the data subject for the processing of his personal data when a drone is operating in a geographically-unrestricted area, often unseen and even unheard?
And how can the unlimited collection of vast amounts of personal data, footage and information be compliant with the principles of proportionality, data minimisation or purpose limitation listed in the data protection law?
When it comes to the wider notion of privacy, the implications created are far-reaching and worrying. Drone equipment is susceptible to the so-called ‘function creep’ in that drones being used for one purpose can easily be used for a wide variety of other purposes. For example a drone being used to shoot footage of a concert can easily be used to detect people who fail to pay their parking ticket.
Academics also suggest that the widespread use of drones for ‘general’ surveillance could lead to an Orwellian dystopia or the so-called ‘chilling effect’ where citizens under the ever-watchful eye of Big Brother would feel, maybe even unconsciously, repressed and restrained from exercising their freedom of expression and freedom of association.
Transport Malta has already issued a draft legal notice the aim of which is to establish no-fly zones in the proximity of airports and also seeks to limit the yet unhindered use of drones in urban areas and over open-air assemblies of people without permission.
While the cautious regulation of such drones is a commendable move in the right direction, privacy-related issues remain unaddressed. One hopes that efforts will be taken by the relevant authorities to take action in this regard ensuring that a balance is struck between technological progress and our fundamental human rights.
Thomas Bugeja is an associate at Fenech & Fenech Advocates.