During my Arctic expedition trip to Baffin Island this summer, I was surprised to encounter a professional American filmmaker and his partner using an unmanned aerial vehicle (aka: a 'remote piloted aircraft system, an unmanned aircraft system, or simply, a drone) to capture footage of our vacation.
They had been sent to film wildlife in Canada on behalf of a
U.S. travel company seeking to drum up interest since the
commercial use of drones in the United States is largely
banned.
Watching a rough cut of his film, I could not help but think that
while the resulting sweeping aerial footage of tundra, polar bears,
glaciers, and happy hikers captured by the device was brilliant,
and it was reasonably acceptable to use this technology on remote
islands in Nunavut, I would likely have a completely different view
if he was filming me on a crowded city street in Toronto.
Drones are breaking new ground when it comes to surveillance
technologies and practical applications in areas such as military
aviation, scientific research, police surveillance, emergency and
disaster monitoring and assistance, photography and film, as well
as providing recreational fun for hobbyists. However, I question
whether Canadians have fully turned their minds to the pervasive
privacy implications of drones equipped with cameras, thermal
imaging, and other surveillance technologies.
South of the border, the U.S. has in recent years taken a very
restrictive position on the use of drones. The Federal Aviation
Administration claims authority over drone operations in U.S.
airspace and in 2007 banned all commercial drone uses unless
special permission is granted.
Per the FAA Modernization and Reform Act of 2012, the FAA is
supposed to produce regulations relating to UAVs by the end of the
year, but appears to be falling behind Congressional
timelines. A near-miss between a US Airways 50-passenger
flight en route to Florida and a drone in March additionally
highlighted the safety concerns relating to drones.
Somewhat surprisingly, in September the FAA granted six film and TV
production companies an exemption to operate drones in a commercial
setting, for the purposes of "scripted, closed-set filming for
the motion picture and television industry," which is only the
second time the FAA has granted an exemption for commercial drone
use.
Compare this to Canada, where 945 flight operation certificates for
commercial drone use were approved in 2013 alone by Transport
Canada, which has jurisdiction over the regulation of civil UAVs,
through the Canadian Aviation Regulations, made under the
Aeronautics Act.
The CAR state that commercial drone use is only permitted if: (i)
the operator has received a Special Flight Operations Certificate
from Transport Canada at least 20 working business days prior of
the operation or as otherwise agreed with Transport Canada; or (ii)
holds an Air Operator Certificate that specifically permits the use
of UAVs.
Section 623.65 of the CAR mandates that applicants for SFOCs must
provide considerable information to Transport Canada,
including:
- the type and purpose of the drone use (operation);
- a complete description of the aircraft to be flown;
- 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;
- the emergency contingency plan to deal with any disaster resulting from the operation;
- a detailed plan how the operation is to be carried out (including a clear, legible presentation of the area to be used during the operation, aerial routes, maps, location and height of obstacles, exact boundaries of the area, altitude, and routes); and,
- other pertinent safety information.
Each application is considered on its own merits and if
accepted, the minister issues certificates on a case-by-case basis.
Even Transport Canada acknowledges "the regulatory structure
is not in place, to support routine operations" but once an
initial SFOC has been issued to a party, subsequent requests to the
same entity may be expedited.
Transport Canada's main concern regarding UAVs has always been
safety, not privacy. In fact, Transport Canada has repeatedly
stated that its mandate does not include addressing privacy
concerns for any aviation activity, even though some UAVs may
contain actual surveillance technologies, such as high-powered zoom
lenses, radar, night vision, infrared, ultraviolet, thermal
imaging, and LIDAR (light detection and ranging)
technologies.
Interestingly, while commercial drone permission is clearly granted
in Canada at a much higher rate than the U.S., both countries
maintain similar rules for drones under 35 kg (77 lbs) in Canada
and 55 lbs in the U.S., which are considered recreational hobbyist
aircraft. The corresponding regulations in both countries are
non-existent. Regardless of whether or not the drone is equipped
with any photography, film, or other technologies, if it is used
for a recreational purpose, it is categorized as a model aircraft
and falls completely outside of the minimalist legal regime Canada
(and the U.S.) has in place for UAVs.
This current state of the law is concerning, given possible
(misuse) by recreational-sized camera drones, including
"lateral surveillance" (citizens conducting surveillance
on other citizens). The FAA south of the border intends to regulate
model aircraft in the future, but Transport Canada has stated no
similar mandate and is content with regulating the safety of our
airspace alone.
The Office of the Privacy Commissioner of Canada has written
extensively about its privacy concerns due to the emerging growth
of the drone market, and has confirmed that The
Personal Information Protection and Electronic Documents Act and
the Privacy Act will apply to commercial and governmental drone
use, respectively, although some loopholes (possibly including
journalistic or artistic exemptions) remain. It is not hard to
imagine the Criminal Code could also apply in many circumstances of
drone misuse, though there is very little current discussion on
that topic.
Outside of PIPEDA and Criminal Code sanctions, the Information and
Privacy Commissioner of Ontario has implied that drone misuse by organizations or
individuals could be subject to civil litigation such as that in
Jones v.
Tsige, in which the Ontario Court of Appeal found a new
tort of "intrusion upon seclusion" to reflect the ability
of individuals to use technology to seriously invade the privacy of
others.
There is also some question of the possible violation of
citizens' Charter rights by law enforcement agencies that use
drone surveillance technologies to monitor suspected criminal
activity. In R. v. Tessling, the Supreme Court of
Canada found police use of a forward looking infrared camera over
the accused's home was not considered a violation of the
Charter s. 8 right to be free from unreasonable search and
seizure.
The long line of case law, including Tessling, R. v.
Edwards, R. v. Duarte, and R. v. Wong, that
examines police surveillance techniques in light of s. 8, combined
with the fact the RCMP has already received long-term SFOCs from
Transport Canada to use drones, anticipate that constitutional
litigators may be ready to challenge police drone surveillance
techniques in the near future.
Presently, it is arguably difficult for Canadians to complain too
loudly about existing drone usage. While the privacy commissioner
has a complaint mechanism for violations against PIPEDA and the
Privacy Act and can investigate alleged privacy breaches, in the
absence of the ability to levy significant financial penalties for
breach, the deterrent effect upon unwanted surveillance by UAVs is
limited.
Moreover, how is an affected party even going to know their privacy
is being violated and who is behind it? Even if an individual
challenges a company alleging their privacy has been violated by
the operation of a UAV, it would be challenging to produce evidence
to support the complaint.
While there are restrictions on the use of drones over urban areas,
and in a majority of cases SFOCs are only granted to UAVs within
the visual line of sight, there are still exceptions. For UAVs that
can operate outside of the controller's sight, or "beyond
a visual range" as Transport Canada terms it, the potential
for abuse for remotely-operated and stealthy drones remain.
To end on a personal note, since I spent most of my time kayaking
rather than where my fellow passengers were shooting video (and
clearly operating their drone within eyesight), there is very
little actual footage of me in their film. Not an unhappy
development from my perspective.
Originally published on Canadian Lawyer Online - IT Girl Column
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