Robot Law II: Drones

The first technology column I wrote for Slaw was called Robot Law. In those days, the main uses of unmanned aerial vehicles (UAVs) or unmanned aircraft systems (UAS) – aka drones – were military, either for reconnaissance or for attack. Since then, civilian uses have expanded, and the technology has evolved to serve them. Individuals can readily buy drones the size of insects or the size of a microwave oven or larger. Commercial versions can be the size of small aircraft.

Among the many peaceful uses of drones are surveying, especially of hard-to-access or remote lands and installations like pipelines; border patrols; inspection of emergency situations like fires or floods, searching for missing persons, general photography, and household maintenance (check your third-floor eavestroughs). Oh yes, and delivering pizzas. Amazon.com has applied for permission to test a system to carry out general delivery of online purchases via drone. About 85% of the goods it sells weigh less than five pounds, so a drone would be capable of carrying them.

Ontario’s Information and Privacy Commissioner reported in 2012 that there were more than 220 UAV-related firms in Canada. Those numbers will only have increased.

One suspects that we are only at the beginning of the application of human imagination to what these devices might do. And where the human imagination goes, lawyers are soon to follow. Drones raise a number of issues of law, all of them, like the technology, in evolution.

A. Are they legal?

Canadian regulation

Drones – unmanned aerial vehicles – are first of all flying machines. This means that the law of aeronautics will apply, so we are into federal law. The Department of Transport’s Canadian Aviation Regulations provide for UAVs expressly. They provide that a commercial user requires a Special Flight Operation Certificate. In the words of a recent (September 2014) information document published by DOT,

The requirement for an SFOC is intended to ensure the safety of the public and protection of other users of the airspace during the operation of the unmanned air vehicle. Transport Canada has to be convinced that an individual can conduct their planned operation safely and is familiar enough with aviation regulations before an SFOC will be granted.

The Department explains why the permissions are still ‘special’:

While the ultimate goal is to “normalize” UAV operations within civil airspace, the industry technology is not mature enough, and the regulatory structure is not in place, to support routine operations. CITATION

The application for a SFOC must include

(f) a complete description, including all pertinent flight data on the aircraft to be flown;

(g) the security plan for the area(s) of operation and security plan for the area(s) to be overflown to ensure no hazard is created to persons or property on the surface;

(h) the emergency contingency plan to deal with any disaster resulting from the operation;

In addition, users must have adequate liability insurance in order to get an SFOC.

A very thorough discussion of the practicalities appears in the DOT manual for the staff who consider applications for SFOCs. Many of the operational limits can be found in the manual rather than in more strictly legal text. See for example the Key Conditions at page 60 of the manual.

SFOCs are required for commercial use only. This limit seems to come from the definition of UAVs, which exclude model aircraft, whose definition in turn requires non-commercial use. One may ask these days whether the exemption makes sense as applied to drones, which are much more versatile than model aircraft and whose use is expanding quickly. One could do a fair bit of damage with a 35-kilogram flying object.

American Regulation

The situation in the United States is quite different, at least for commercial use. Such use is essentially prohibited. The Federal Aviation Authority (FAA) notes that US civil airspace is the busiest in the world, and the country offers fewer wide open spaces than Canada. Safe use of the airspace by all its occupants is the chief concern. While the FAA has the ability to make exceptions, there is no set process for applying for an exception, and a large number of applications await disposition. Under statutory mandate from Congress, the FAA is working on a policy for exceptions, however, so the process is likely to become more transparent and efficient.

Canada and the US cooperate to some extent on such regulation through the Regulatory Cooperation Council. The work plan speaks of harmonizing approaches to UAVs.

In the US, a number of media interests filed an amicus brief in an FAA prosecution of a commercial drone user to submit that the prohibition against using drones for commercial purposes infringes their freedom of expression. Everything from movie special effects to newsgathering in dangerous surroundings may benefit from using drones, and choosing to use them, and how they are used, involve free speech issues, say the interveners. Some Hollywood studios have recently been granted exemptions to use drones on film lots, i.e. in defined areas as well as for defined purposes, and under expert supervision.

EU Regulation

The European Union is also considering drone regulation at a community level.

Standards instead?

It has been argued by some UAV enthusiasts in the US that regulation by exception is not desirable, in part because it demands a lot of resources and in part because it is uncertain. Entrepreneurs have a hard time planning, or raising money, if they are not sure of having their exemption. Without the money, innovation can be discouraged. Indeed a number of businesses that are exploring new uses for drones have, on the advice of their lawyers, brought their experiments to Canada, where permission is more readily available.

An alternative has been formally proposed to the FAA, that it should prescribe standards for the manufacture of drones, along the lines of those that exist for electrical equipment and other technical goods. For example, drones could be required to be incapable of operating higher than a prescribed height (say 400 feet), to operate within the sight of the operator, to land gently if they lose contact with the controlling tablet, and even – given that they operate with geolocation functions – stay a certain distance away from airports.

Such manufacturing standards could apply to model aircraft too, so that the semi-tenable exception for such things could be avoided.

Another advantage of dealing with operational risks through the nature of the machine is that the FAA rules (and their DOT equivalents?) are probably unenforceable for many drone users. It is not realistic that people buying what is essentially a consumer product or small business tool will be able to fill in the detailed applications required for a SFOC, described above, or an exemption application in the US. Further, there will be too many varieties of drone and of use for them to be discovered and prosecuted. In other words, if people are going to do it anyway, a manufacturing standard is a more effective way to promote safety.

Criminal drones

Drones could be used directly to commit crimes, but the application of the usual criminal law to such activity would not normally be in doubt. One imagines theft, harassment, or damage to property (one could drop one’s own bombs!). One would not have to ask whose mens rea was at issue in these instances. Drones will not be going on frolics of their own for some time. See more discussion in the Robot Law column mentioned above.

B. Are they spies?

State surveillance

Drones started out as spies, doing military surveillance. Putting a camera on them seems to come naturally ・ often for very constructive purposes, as noted. But their capacities have worried both the Ontario and the Federal privacy authorities.

The latter report cites a noted US authority:

Due to their mobility, size, and sheer inhuman patience, robots permit a variety of otherwise untenable techniques.・ (page 6)

Thus the tracking and observation powers of drones far exceeds that of live humans, in mobility, versatility and staying power. Newer technology involving infra-red scanning and sensitive vibration detection allows observation through walls.

Such methods raise questions of reasonable expectations of privacy, since most people simply do not (yet) expect to be observable from the air at all times and in all places. Whether Canadian courts would be impelled to revisit Tessling (no warrant required to fly over person’s home with a heat detector) when the surveillance involved not only a fly-over but a persistent presence looking through the walls, no doubt we will find out in due course. A thorough discussion of the US authorities on tracking and tracing (and the other privacy issues raised by drones) is here.

The Ontario IPC recommends that governmental use of UAVs for the purpose of any sustained surreptitious surveillance should generally require a warrant. (page 24) A few states in the US have such limiting statutes, or govern admissibility of evidence taken by drone without a warrant. The US article mentioned in the last paragraph speculates that even a warrant should not allow some kind of intrusions on privacy that drones and the technology they carry could achieve. (page 498)

Drone pictures have been used in evidence since at least 2007, according to the IPC. Presumably the same kind of foundation evidence would be required as with any computer-based evidence, since the pictures taken and transmitted are certainly digital.

Commercial surveillance

The capacity of generally available drones to carry out observation and recording is not much more limited than that of law enforcement authorities. In Canada, collection of personally identifiable information from the air for commercial purposes clearly falls into the general privacy rules of PIPEDA or its provincial counterparts. PIPEDA has a media exception, so newsgathering operations by drone will not be impeded by privacy law. (Newsgathering is not an exception for the need for an SFOC under the Aeronautics regulation, though. To date Canadian media have not sued to be excluded from that rule.)

The drone sellers spend more time warning against flying without aviation certificates than they do about privacy violations.

Businesses have an interest in non-personal but still confidential information, as well. Commercial espionage is not new, but drones may allow it to expand. Will the reasonable efforts required to protect trade secrets need to expand to protect them against spies in the sky? Existing law will probably be largely adequate to deal with business intelligence gathering as it acquires a third dimension.

In the United Kingdom, the Information Commissioner’s Office has said that broadcasters filming from unmanned drones must comply with all the usual privacy rules. Its handbook In the Picture: a data protection code of practice on surveillance practice and personal information has been updated to deal with the topic (pp 29ff).

Non-commercial snooping

Drones in private hands may tempt owners to do their own informal observation, such as snooping on their neighbours or romantic rivals, or to collect information to support bullying. The devices available certainly make it easy. There is no reason to believe that the usual criminal laws about stalking and harassment would not apply, though problems of proof may arise. The law of trespass may also apply, subject also to enforcement. In Ontario, the occupier of land has a right to arrest and hold a trespasser for disposition by law enforcement authorities. The Trespass to Property Act applies to persons, but does prohibit ‘activities’ carried on by a person on premises that is protected against trespass. Whether a drone is ‘on’ the property may depend on how high the property right extends.

In the US, there has been some speculation, some of it learned, about the right to self-defence against trespassing drones, i.e. to shoot them down. Some sensible people defend it some of the time. Canadians proceed at their own risk.

The Chinese have a laser system for shooting down drones, apparently. Or you may be able to train a falcon to do it for you.

In some cases a person pestered by a drone might have a cause of action in nuisance as well.

As for the invasion of privacy, four provinces have statutory torts, not yet tested by drones. Ontario’s cause of action for intrusion upon seclusion could apply as well, if the circumstances were ‘highly offensive, causing distress, humiliation or anguish’. Other provinces’ courts have, however, declined to follow Jones, at least where the province had their own privacy tort.See for example Ari v Insurance Corporation of British Columbia at para 63.

An American law professor who is a drone enthusiast – and who has been promoting the standards-based regulation mentioned above – has a column in the ABA’s Business Law Today about advising clients who want to run drones. In it he says “ Don’t get caught up in the frenzy over privacy. “ In particular:

It is important to keep the privacy issues in perspective. Lots of privacy law is on the books already, and privacy advocates are sophisticated and influential. The FAA knows very little about privacy; it is a safety agency. Moreover, it is not clear that the FAA has statutory authority to promulgate limitations on flight solely to deal with privacy concerns.

Privacy law already provides basic protection. If a drone operator causes a microdrone to look through a bedroom window and capture imagery of the people inside, it constitutes common-law invasion of privacy under the intrusion-upon-seclusion variant. If he or she puts the resulting video up on YouTube, the operator is liable under the giving-publicity-to-private facts variant. Little case law exists to support these propositions, because microdrones having this capability are too new, and it would take an extremely reckless helicopter pilot to commit the tort on the hypothetical facts.

Similarly, tort law also provides protection against aircraft, including drones, flying so low as to constitute a common-law trespass or nuisance.

Is he right? Will existing law be enough to protect privacy? Would his faith in tort protection be justified in Canada?

Voluntary privacy

The International Association of Chiefs of Police has a statement of Recommended Guidelines for the use of Unmanned Aircraft that recommends that where there are specific grounds to believe that the use of a drone may collect evidence of criminal activity and that the use may intrude on reasonable expectations of privacy, then the police agency will seek a warrant to authorize the use. The Privacy Commissioner of Canada report mentioned earlier quotes some police officials on the topic in a way that suggests they come to this policy reluctantly. (page 11)

Private users have a Code of Conduct developed by the Association for Unmanned Aircraft Systems International, which asks that its members respect individuals’ privacy.

Privacy by design?

One wonders if the kind of built-in safety standards that were discussed above could be extended to privacy protections. At least the line-of-sight restriction would keep drones from exploring too closely around private residences. Other restrictions on the type of equipment that can be carried may not be appropriate, given the range of legitimate uses likely to arise for drones. The Ontario IPC report discusses how the principle of privacy by design can be applied to drones, from page 17. (The safety standards referred to earlier are not concerned with privacy.)

C. Are they dangerous?

The dangers of drones are largely foreseeable – that they may malfunction, that they may collide with other aircraft, that they may crash and disable themselves, that they may crash and harm others. Foreseeability is a standard tort concept, so the civil liability issues raised by drones are generally understandable through traditional tort law.

The civil aviation regulations that set standards for drone safety do not speak to the civil liability consequences of their operation. Nonetheless, failure to observe those rules – such as keeping at least 100 feet over the heads of crowds at sporting events, or staying away from airports – is likely to lead to liability if harm is done. In other words, the aviation rules would serve as a standard of care.

That is why Transport Canada requires adequate liability insurance in order to get an SFOC. The regulation does not say how much is adequate, or what harm must be covered by it. No doubt the answers to these questions depend on the proposed use of the drone.

If one does not have the appropriate certificates from the authorities, however, it is probable that one’s insurance will not cover the harm the drone causes. Insurance policies typically deny coverage for illicit activities.

Dangers could arise as well from unexpected interference with the operation of drones. Military drones have had their software hacked, though operations were unaffected. Civilian drones could also have signals intercepted, and possibly altered. Accessing the signals controlling a drone in flight, or the information being transmitted from it, would almost certainly violate the Criminal Code‘s provisions on unauthorized access to data. Unlike the Computer Fraud and Abuse Act in the US, such a violation does not give rise directly to a right of civil action. However, if harm were caused, and the source of harm could be identified, it is likely that compensation would be ordered.

If the hacked data were personally identifiable information, privacy law might give rights as well.

D. Miscellaneous drone law/lore

If drones can look for missing people, then hunters can use them to look for ‘missing’ animals. Generally hunting is probably a non-commercial use, unless they are used by guides, so hunting drones (used to track and start game rather than shoot it) may not need an SFOC. However, regulations have been made, including in some western provinces, to forbid hunting with drones, as ‘unfair’ to the game.

The FAA in the US has found it necessary to counsel against people hunting drones themselves.

One does not have to be in the military to use drones to try to start a small war.

Finally, where the military, commercial and hobbyist uses end, the artistic uses arise. This demonstration is worth putting up with 15 seconds of advertisement for – and it is clearly just the beginning.

Conclusion

It is not necessary to drone on here. The capacities of unmanned aerial vehicles are increasing while their affordability and thus presence do likewise. Regulatory law may have difficulty keeping up: how long can a regime based on exceptions handle the volume of requests? Whether standards-based rules can account for safety concerns or privacy demands remains to be seen. Regulations of any kind must be flexible enough to permit beneficial uses of the technology that are not currently contemplated.

Drones, like other robots, will continue to challenge lawyers and legal policy makers in the semi-foreseeable future.