Drones flying high, you know how I feel

Technology, privacy, law.

By Kimberley Ching

This piece was originally included in the first 2016 edition of The Full Bench: Do Lawyers Dream of Electric Sheep. To view the magazine, please visit https://issuu.com/utslawstudentssociety/docs/2016_the_full_bench_ed_1

When recreational drones entered consumer consciousness they became fast favourites with aviation hobbyists, Youtubers, and regular JB Hi-Fi aficionados. It seems like only yesterday that young, wide-eyed Timmy remotely sent his drone into Bunnings with a humble $10 and the hope of seizing a snag. Whether it be for recreational or personal use, the rate at which drones entered the market was no match for government regulation. This speaks to the old adage that while technology evolves at a rapid pace, the law meanders behind. The Civil Aviation Safety Authority (‘CASA’) have implemented standard operating conditions to regulate recreational drone use, however the problem does not seem to be with the technology itself, but the threat that it poses to one’s privacy. This article will identify the current regulations in place, and ultimately critique their efficiency in puttying the holes in Australian privacy protection and surveillance law.

Current regulations on drone use in Australia
Current Australian regulations on drone use came into effect following a series of drone related incidents: a drone crashing into a car on the Sydney Harbour Bridge, a drone falling from the sky during a War memorial ceremony in Canberra, and a drone that came within 50 metres of a rescue helicopter on the Gold Coast.

In response, CASA developed the following regulations for unlicensed, recreational drone users, under which drones:

• Can only be flown during the day and not at night;
• Can only be flown within one’s range of sight and nowhere further
• Cannot be operated to fly more than 120 metres above ground;
• Cannot fly over populous areas e.g. beaches, parks and sporting ovals; and
• Cannot be operated to fly any closer than thirty metres from other people.

Whilst CASA have attempted to maintain the safety, protection, and wellbeing of the public, there is no guarantee that this safeguards their privacy. A drone user can intrude upon one’s privacy either deliberately or involuntarily. Whether it be for a mere two seconds or perhaps two hours, the potential for such an intrusion elucidates the fractured landscape of our privacy laws.

The privacy laws in place
Marked by their increasing accessibility and affordability, the rising use of drones is both a commercial success and a legislative fear. Termed ‘remotely piloted aircraft’ (‘RPA’), they are advantageous in that they often travel unobserved, can enter — or hover over — public property, and have the capacity to record and stream live images and sounds. 4 They are cost- effective nightmares that are capable of collecting information without any prior knowledge or consent from an individual being surveyed.

As drones were introduced after the development of certain laws, there is no exact or sufficient avenue for recourse should a plaintiff seek redress. The available options include the Privacy Act, the Surveillance Devices Act, and common law torts of trespass or nuisance. However, in listing these, all are ineffective for the following reasons:

Although the Privacy Act provides 13 principles which govern the method
organisations should undertake to collect, manage and appropriately disclose information, the Act itself does not apply to the collection and use of the same information by private individuals. There is no parallel legislation that provides protection for the individual affected. The only pathway to redress through the Privacy Act is by lodging a formal complaint to the Australian Information Commissioner, where the outcomes may not entirely rest in your favour. Further, various exceptions to the Privacy Act exist for certain
stakeholders, which include but are not limited to small businesses, political organisations, and media organisations. The ultimate question becomes: who does the Privacy Act serve besides the individuals and organisations seeking to retain, collect, and disclose your personal information.

The Surveillance Devices Act (Cth) is no different. While it does regulate the lawful use of surveillance devices by law enforcement agencies, it does not expressly prohibit the use of such devices. Prohibitions are found separately in state and territory statutes, however, the statutes are inconsistent — what may be deemed appropriate in one jurisdiction will vary in the next.

Finally, a plaintiff may be able to seek redress through the tort of nuisance for an unreasonable interference with an occupier’s use and enjoyment of their land, which could be interpreted to include the use of RPA recording and surveillance. In order to claim for damages, the plaintiff must, however, undertake the difficult task of proving that the RPA intruded upon and affected their airspace at a height which is reasonably necessary for the ordinary use and enjoyment of the occupier.

Conclusion
Evidently, the legislation and common law protections that currently exist to curtail privacy threats posed by drones only go so far. In line with the Australian Law Reform Commission’s final report, the ‘Serious Invasions of Privacy in the Digital Era’, urgent reform is required to protect potential plaintiffs from the threats of RPAs. Whether it be a reconsideration of a common law tort of privacy, or a new, constitutional head of power, the law must evolve with the currents of technology and not against it.