Wednesday, 18 January 2017  
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Regulation of drones - EU Working Party Opinion Print

Drones can undoubtedly provide significant advantages and benefits by enabling a cost-effective and quick way to survey land and events from the air. Technological advances are encouraging their adoption and also the immediate use of any information provided by them.

The rapid deployment of a drone at an accident scene, for example, could allow for close up realtime streaming of video to news broadcasters. That drone could also prevent the deployment of an air ambulance, perhaps leading to the death of a person because rapid medical care was prevented. As drones move away from being flimsy plastic toys to solid constructions with significant metal parts the risk of damage to rotors and engines increases, presenting real risks to planes and helicopters.


Aside from physical damage to property there are also privacy issues to consider. If a home is an Englishman's castle then how will a drone popping up over the fence be viewed? The chances are that many would regard it as an invasion by foreign hordes worthy of a pitched battle to defend the home. High resolution cameras and lenses mean that boundaries are no longer demarcated by fences but rather by the ability of a camera to resolve images from afar. The EU Article 29 Working Party has published an opinion (Opinion 01/2015 ) on the use of drones or remotely piloted aircraft. Aside from regulation by national civil aviation authorities in Member States, there are considerable data protection and privacy issues to be considered, particularly in respect of Articles 7 (right to private life and family life) and 8 (protection of personal data) under the Charter for Fundamental Rights of the EU. The opinion is extremely well written and raises a number of issues and concerns, though finding appropriate solutions will be difficult given the rapid advancement of technology. As the Working Party puts it: "the processing of personal data by drones has a peculiar nature due to the unique vantage point that magnifies the effectiveness of any on-board sensors that implies a reduced transparency and increased privacy intrusion compared to a similar fixed sensor". The surveillance opportunities offered by drones can be both covert and overt and there is a perceived risk of function creep, where the linking of different technologies could result in personal data being used for far broader purposes. The Working Party is of the opinion that both the data protection directive (Directive 95/46/EC) and the electronic communications services directive (Directive 2002/58/EC as amended by Directive 2009/136/EC) apply. However, the opinion does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity. This exemption (in Article 3.2 of the data protection directive) needs to be narrowly construed and where any recording takes place in a public place then it should not be regarded as a "personal or household" activity. The Working Party sidesteps the use of drones by journalist, saying simply that this should take into account national laws. This is a particularly complex area and probably best left to be debated as a separate issue. The use of drones for law enforcement receives a more detailed examination, though.The Working Party feels that the "use of drones directly operated by the police and other law enforcement authorities - or their request to access data collected by drones operated by private entities for their own purposes - creates a high risk of rate rights and freedoms of individuals and directly interferes with the rights to respect for private life and to the protection of personal data". The view is that drones should only be used where there is a "concrete demonstration of their necessity and appropriateness for the specific purposes pursued is offered". There should also be an justification why less intrusive alternatives cannot be used. There is a rather chilling comment by the Working Party, which adds further weight to the concerns raised (no less so for law enforcement purposes or national security): "One should consider the possibility of interconnecting a number of drones in order to carry out surveillance on a large area. Swarms of drones, with real-time communication channels between them and external parties, trigger higher data protection risks, since they could easily enable coordinated surveillance, i.e. tracking movement of individuals over large areas." The Working Party clearly advocates against the indiscriminate use of data by law enforcement agencies, however it would seem that the UK government is adopting a far more permissive approach, citing the ever present "threat" of terrorist activities as justifying the erosion of civil liberties. That is, of course, an entirely personal opinion of the author of this piece. The opinion goes on to view the issue from the perspective of Article 7 of the data protection directive, clearly identifying significant issues. How can a data subject freely give specific and informed consent, for example, if he or she does not know what the drone is doing? Proportionality is another issue (Article 6 of the data protection directive). Just because a drone has a full range of sensors, is it necessary to enable all of them for the specific intended purpose of that flight? The Working Party suggests that operators or drones should make details of this publicly available, such as via its website or by requiring specific licences (with central authorities retaining that information). The only effective solution is to require drones to publicly transmit all the information required by the data protection directive as a condition of their use, though this introduces a whole new level of sophistication and cost (both in terms of creating standards and also in receiving and displaying that information). A drone without that information would therefore clearly be operating illegally. The downside of this is some self-imposed vigilante group tacking it upon themselves to protect a perceived abuse (e.g. a drone flying near a playground would be an obvious red flag to the proverbial bull). Implementing adequate security against the interception and use of any data needs to be dealt with. Essentially that means any data feed sent wirelessly needs to be encrypted using technology which has been tested and proven to work. It is clear, given the daily reports of insecure devices, that manufacturers are not yet routinely implementing an adequate level of security (consider that the next time you use your keyless access device for your expensive car). While the Opinion raises valid points, in some respects it is lacking. For example, it suggests that where a drone has an image recognition system it should be capable of recognising active and passive tags which clearly convey the data subject's intent. That puts the onus on the individual, rather that the data controller, and is unworkable. Does that mean I have to wear a special beanie when I go out in public with a small RFID tag in it? Similarly, the Working Party suggests that at public events the use of a drone could be limited to certain areas with clear indicators; but this would deny members of the public access to certain parts of an event where there is a concern about privacy. The problem is that devices such as drones erode the anonymity of public spaces and being part of a large crowd. The imposition of data protection and privacy at source is no longer fit for purpose as a regulatory regime. There is too much data, too many opportunities for surveillance and processing and the rights of the individual are too limited (effective rights, that is, as justice is often a function, sadly, of wealth). Rather, regulation should be significantly extended so that data subjects have better access to justice and that the sanctions against the unlawful use of personal data need to be drastically increased. That includes sanctions against law enforcement agencies and government institutions. How much of the information collected online is really used, other than to justify a tick box mentality?
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