Droning On

From armed conflicts to delivering pizza it is undeniable that drones are

Drone
Drone in flight

becoming part of our everyday living. And like the smart phone soon we will wonder how people got along without this technology, of course, there will be those who feel it’s all gone too far. But like it or hate it drones are increasing in numbers and like any new technology often the existing law doesn’t address the new issues that arise, such as the loss of privacy.
There are those that champion the use of drones with many applications in: industry, photography, stocktaking, checking the health of crops, inspecting power lines to name a few. Emergency services also widely employ the use of drones. They are used for science research and some people just enjoy flying them for fun.

In the last 5 years, the drone industry has become a worldwide phenomenon realising exponential growth in technology, manufacturing and their sales. The industry doesn’t like the name ‘drones’ due to this name being synonymous with war machines that reign death and destruction they prefer terms like unmanned aerial vehicle (UAV) or remotely piloted aircraft (RPA). The many applications of drone tech have the potential to help humans do more and know faster and more safely than in any time in our history.

But a rose by any name still has thorns causing regulatory difficulty for modern governments and in this case, the headache for lawmakers is privacy. In essence, it could be argued that our privacy is under threat as drones become widely accessible with advancements in technology that allow for longer flights while being equipped with ever more sophisticated equipment. So when you are out on your yacht enjoying the clear sky and cool breeze what’s to stop someone flying a drone right over your head and start taking pictures? Unfortunately, depending on what country you are in, not much at this time.

The State Response

Of course like most things privacy laws vary widely from place to place. But two common themes throughout many jurisdictions are that privacy laws are piecemeal and they are outdated. They are piecemeal because privacy is different depending on a societies needs. For example, there are laws that regulate how governments are allowed to use citizens’ information. Some people require this information obviously, but if it were to get out into the public domain it could have devastating consequences. But this type of privacy law doesn’t cover the use of drones because this area is about public institutions using information.
Another common area of privacy law is the regulation of law enforcement agency’s collection of personal information. This is the area of law that limits (or does not limit as it were) the ability of the government to spy on you. This area of law might actually cover the use of drones, but only the use of drones by government agencies. It does not stop someone taking pictures of you sunbathing on the deck of your pride and joy or sharing a moment with a beautiful friend.

But this is not to say that there is zero protection as commonly certain behaviours may be considered criminal offences or regulatory offences, the latter being less serious actions that may incur a fine with no criminal conviction (e.g a parking ticket). Behaviours such as: taking pictures for an indecent purpose or misuse of surveillance equipment. And if someone is snooping around your vessel with a drone, they may fall foul of these laws.

Generally, the privacy laws that currently exist focus on equipment that was fixed to some structure: tapping a phone with a listen to device, a video camera fixed to a wall for some examples. The idea of strapped a video camera the size of a matchbox to a remote control vehicle was the stuff of spy movies. But now almost anyone can afford a drone and camera. The radical technological advancement occurring in today’s world is not the world the current legal framework envisions, as there is always a lag between technological development and the creating of laws. In essence, the problem flows from the creation, then the law attempts to resolve the problem. In other words, the laws that exist to protect privacy are outdated.

In the last century, when people thought of protecting privacy, they thought of protecting citizens from the government. While an extreme example, tales from Nazi Germany show that life can be dreadful when you fear that the government is always watching. This is undoubtedly still an important aspect of privacy, with new laws aimed at preventing terrorism threatening privacy every day. But in this century, privacy is also a matter between private citizens. It’s like getting punched in the face: sure you want the person who punched you to go to jail, but you also want to be able to sue that person privately so they can cover your medical bills and compensate you for the pain you suffered. A lot of people want serious breaches of privacy to work in a similar way. If someone intentionally flies a drone to spy on you, they want to be able to sue that person for the invasion of their privacy. So while state or criminal laws may have varying preventative outcomes, often the threat of civil action or suing for compensation can also have a preventative effect.

Civil Compensation

A little closer to my home in Australia there are some complex laws of Equity (a special jurisdiction of law) that may protect privacy by giving rise to a breach of confidence. However, this is a new frontier for Equity, one that may not result in proper protection. The point about this complex system of protecting privacy is that depending on the behaviour and depending on who is doing it, completely different laws may apply. Alternatively, the Law of Torts (wrongs) may prevail; being a common law (judge made law) the past decisions will now have to be applied in circumstances that are significantly different. Thus we are now sailing in relatively unchartered waters and the test cases will indicate the type and amount of compensation that may be awarded.

In a lot of places in the world, the current outdated laws are full of gaps. Again using my home country as an example the outdated system means there is great uncertainty in the laws. Uncertainty in law means that the costs and risks of litigation are much higher. Moreover, even if you do have a case no appropriate remedy may be available. Just because you have a cause of action does not mean you are going to get anything. So for example, if you have a ‘no trespassing’ sign on your property and someone steps onto your property (not knowing that it was private property) you technically have a cause of action. However, it is highly unlikely that a judge will award any significant amount. Suing for breach of confidential information can also give rise to the same problem. You might technically have a cause of action but the amount you are awarded could in no way cover your costs of litigation.

So there seems to be obvious room for change with new privacy problems being created. The problem with change though is that laws a very complex and what seems to be a simple change can end up have massive unintended consequences. This is why the world is looking toward the European Union, in particular, their recent developments in privacy law. There are much stricter laws protecting privacy in the EU and in particular, Germany interprets the laws very strictly. This will be a good test case to understand what the impacts of increase privacy protection on business are, whether the general public will utilise the laws and more importantly whether people’s privacy will be protected. The flip side to any privacy law is what the Americans have enshrined in their Bill of Rights that being the freedom of the individual. Generally speaking, the law is a blunt instrument and time will tell whether a balance can be found between the competing interests.

These matters of privacy particularly impact boating, because as an avid enthusiast myself I know that part of the joy of being on the water is the freedom you feel from getting away from it all and thus the privacy. Being able to share private moments with loved ones, away from the stresses of everyday life. But it’s hard to enjoy the freedom and it’s hard to enjoy the private moments if you are being watched.