Drones flying above our heads have become a reality but unlike the instruments of a dystopian state described by science fiction writers, many modern drones promise real societal benefits. Unmanned flying machines are variously described in the industry as Remotely Piloted Air Systems (RPAS), Unmanned Aerial Vehicles (UAV) or Unmanned Aerial Systems (UAS); I tend to use the commonly understood term drones, acknowledging that some think it has negative connotations linked to controversial military uses of the technology. Over recent years there has been an industry shift from an almost exclusive military focus (e.g. Predator hunter killer operations) towards commercial and civil uses (e.g. Amazon’s drone delivery plans). All predictions are that the commercial and civil market is going to boom over the next decade and there has already been significant investment made by the likes of Facebook and Google. This growth will be due in part to a large variety of uses for the technology that includes journalism (dubbed ‘dronalism’), facilitating internet and telecommunication platforms in inaccessible or hostile environments, fire and rescue, policing, marketing, precision farming, crop dusting, fire detection, flood monitoring, inspection of oil and gas rigs, pipeline security surveillance and geo-physical surveys. There is more on this in the article from Robin Higgons.
How the law touches drones
There are various legal and regulatory matters for users of drones to consider and some key ones are mapped out in the diagram which may be downloaded from the panel opposite.
Despite the myriad of legal touch points, the overriding concernof the drone operator has to be physical safety. But any user would be naive to ignore the impact that drones can have on privacy, data protection and intellectual property rights as well as contractual risk positions.
Countries regulating commercial drone use (or not)
There are a few countries around the world where regulations for commercial drone use are now either in place or in preparation and, to my mind, Sweden, Japan, France and the UK are leading the way when it comes to integrating drone technologies into their airspace.
The UK Civil Aviation Authority (CAA) is a good example of a sensible and proactive regulator – it differentiates and strikes a pragmatic balance between model aircraft hobbyists who have been flying safely for years and professional drone operators who conduct ‘aerial work’ (described in the Air Navigation Order as ‘any purpose (other than public transport) for which an aircraft is flown if valuable consideration is given or promised in respect of the purpose of the flight’). All non-military aircraft registered in the UK must generally have a certificate of airworthiness or a permit to fly issued by the CAA, although there are special conditions for small drones (less than 20kg). In order to use drones for ‘aerial work purposes’ a CAA permission and minimum levels of third-party accident insurance are required, as well as operator compliance with certain safety constraints. Generally the rules prohibit unmanned aircraft from flying in congested areas, close to people or property, for aerial work purposes or beyond visual line of sight. New rules announced recently will state that in the near future drones within the weight category 7 – 20kg will need to be assessed for airworthiness if their operators wish to operate within 150m of a congested/populated area.
The CAA has granted around 200 permissions to fly for aerial work purposes to drone operators. Its approach has led to a safe, reasonably flexible and evolving regulatory framework which continues to develop as the technologies improve and more sophisticated automation and beyond line of sight sorties become possible. In contrast, many other countries in the world are either not engaging with the drone industry or seem to be approaching the process from a tediously rigid bureaucratic position.
Global coordination
Pan European coordination for drone regulation is fragmented. Basic national safety rules apply to all operators, but the rules differ across the EU and a number of key safeguards are not addressed in a coherent way. Currently in Europe drones weighing less than 150kg come under the regulation of the relevant national aviation authority whereas European regulations apply to drones that are above that weight. A more complex matrix of laws governs flights between and across different states that include the Chicago Convention provisions and the International Civil Aviation Organisation (ICAO) rules. There are many efforts to move towards a more coordinated European approach; for instance there is now a European ‘Remotely Piloted Air Systems (RPAS) Roadmap’ that proposes a series of actions to be taken for achieving drone integration into the European air system from 2016.
In a recent press release, the European Commission proposed to set tough new standards to regulate the operations of commercial and civil drones. The new standards will cover safety, security, privacy, data protection, insurance and liability. The aim is to allow European industry to become a global leader for this emerging technology, while at the same time ensuring that all the necessary safeguards are in place. Vice-President Siim Kallas, Commissioner for Mobility and Transport, said: ‘Civil drones can check for damage on road and rail bridges, monitor natural disasters such as flooding and spray crops with pinpoint accuracy. They come in all shapes and sizes. In the future they may even deliver books from your favourite online retailer. But many people, including myself, have concerns about the safety, security and privacy issues relating to these devices.’
His report goes on, rather optimistically, to say that the technology for civil drones is maturing and there is potential for significant growth and job creation. On some estimates in the next 10 years it could be worth 10% of the aviation market – €15 billion per year. The Vice-President added, ‘If ever there was a right time to do this, and to do this at a European level, it is now. Because remotely piloted aircraft, almost by definition, are going to cross borders and the industry is still in its infancy. We have an opportunity now to make a single set of rules that everyone can work with, just like we do for larger aircraft.’
But how do the Europeans compare to our American cousins? Both Europe and the US can be considered somewhat unwieldy legislators – Europe must juggle the various law makers in its member states and the US its different state legislators. I think both will develop laws in a piecemeal fashion and in response to political, media and business interest as well as the inevitable accidents. I also suspect the regulatory landscape for drones in the US will be shaped heavily by industry lobbyists and privacy protection activists. At present the US Federal Aviation Authority (FAA) is showing all the traits of an inflexible and ineffective regulator. It is being restrictive and slow about integrating drones into US airspace; the result is that people are simply ignoring the FAA and flying drones anyway with no certification or training pathway and sometimes with frightening results.
I think the most successful approach to regulating commercial drone use will be by incremental steps rather than a ‘big bang’ introduction of a completely new regime. The FAA have a congressional mandate to integrate drones into the US national airspace by 2015 (a deadline it looks set to miss); this seems to have caught the public’s imagination and has been fuelled by social media excitement. In contrast the UK and some European countries began the incremental integration of drones several years ago.
A regulator needs teeth (and why it’s a good thing for the industry)
In the UK the CAA has successfully prosecuted two reckless small drone pilots. Most recently a man pleaded guilty to flying a quadcopter drone over busy rides at the Alton Towers theme park after he unwisely posted his video on YouTube. It followed on the heels of the first UK conviction for illegal use of an unmanned aircraft on April Fools’ Day this year when a pilot lost control of his fixed wing craft near an MOD facility and narrowly missed a public bridge.
My view on these prosecutions is that they are a good thing for the drone industry in the UK and an example to the rest of the world of how to regulate and police a cutting edge, disruptive industry – the US FAA should take note! Many operators with a CAA permission to conduct aerial work in the UK are small businesses that have invested heavily and, by my experience, offer a professional service. On the whole they care deeply about the industry and the safety of others. If there were to be a serious injury to a member of the public (e.g. a child gets badly hurt by a drone crash whilst on a ride at theme park…) there would undoubtedly be a public reaction and the regulations would be at risk of a heavy handed overhaul – threatening the livelihood of honest operators who play by the rules and work hard.
Privacy concerns around drones
The impact of drones has been widely debated in the media and academia, including in two excellent pieces by Lachlan Urquhart and Alan McKenna published in the SCL magazine. Most of the focus of that debate has been on privacy issues.
It is important to acknowledge that drones have many uses, not all for surveillance purposes, and any privacy impact is largely dependent upon how the technology is deployed. It is clear that if a drone is used in a covert surveillance role against human activity then the privacy impact risks are likely to be significantly higher than if a drone is to be used to analyse crop damage or an isolated offshore oil platform. Nevertheless there are legitimate concerns and it seems the drone sector could be an interesting battleground for the future development of privacy laws. The Stanford Law Review has suggested that ‘Drones may help restore our mental model of a privacy violation. They could be just the visceral jolt society needs to drag privacy law into the twenty first century‘ (see R. Calo (2011) ‘The Drone as Privacy Catalyst’ Stanford Law Review Online at 29).
The UK Information Commissioner’s Office recently consulted on a revised Code of Practice on CCTV. It included a section on emerging technologies that considered drones. I have been encouraged by the interaction between the CAA and ICO regulators and have argued that the ICO should continue to coordinate closely with the CAA to ensure that Privacy Impact Assessments (PIA) become a mandatory part of the operations manuals that prospective drone pilots must submit to the CAA in order to apply to receive a permission to fly for aerial work or surveillance purposes. If a drone operator is planning to conduct a flight that is likely to have a high risk of privacy impact then a more specific risk assessment of the privacy impact of that particular flight should become part of that pilot’s flight planning and should be recorded on the pilot’s daily flight plan risk assessment. Drone operators should be encouraged to display privacy policies that set out the data they collect and how they store and use it. This could be displayed on their web sites but should also be available for download and distribution on-site whilst flying.
It is also important at this stage of the sector’s development for the ICO to engage with stakeholders such as ARPAS-UK (the leading UK body representing small drone operators) and groups such as Big Brother Watch and Privacy International to consider privacy factors. Most drone operations are pre-planned and it should be possible to coordinate with the public, the authorities and various other stakeholders in advance. The main exceptions to this are disaster response and rapid response journalism. The latter could become a vital part of reporting up to the minute, nationally important and breaking news in the future. It is very important that the CAA and ICO work together to ensure this technology is embraced and sensibly regulated for this purpose. The ICO should consider recommending a legislative exemption for rapid response journalism similar to the way an exemption for journalism, art and literature to protect freedom of expression has been incorporated in s 32 of the Data Protection Act 1998. If the ICO and CAA ignore this particular developing area of rapid response journalism then irresponsible, amateur cameramen will attempt to take footage anyway and try to sell it to news agencies. This will very likely result in significant physical and privacy accidents.
How the law could shape the industry
As we have seen the law touches the drone industry in many ways. Over the course of the next two years I think we could see a three-tiered industry develop as a result of changes to airworthiness standards, airspace regulation and privacy demands:
· ‘standard’ operators who will work under the existing standard permission restrictions and no more – the industry barrier to entry for their competitors is relatively low (cost, qualifications and permissions) and so more operators will enter the space meaning ‘standard’ operators will be able to charge progressively less for their services over time;
· ‘premium’ operators who will have an ‘airworthiness’ approval and can satisfy privacy concerns – these will be able to do more operationally in congested areas and will be able to charge more for a premium service; they will however have higher operational and capital costs (investing more in relatively expensive airworthy kit, qualifications, training and people);
· those who focus on sectors like agriculture and offshore work where there are few people around to crash into and so arguably do not need such a high capital expenditure on airworthiness certificates or privacy impact mitigation – this group can and will continue to be able to charge healthy fees because of the technical complexities and risks involved in their specialist sectors.
Privacy impact and management is going to be an issue that stakeholders continue to focus on. The public and concerned groups will demand greater controls and this should force further interaction between the specialist regulators. Drone manufacturers will see the premium operator marketplace as an opportunity to develop high specification (and more expensive) drones; these will have built in airworthiness safety measures and will be perfect vehicles for the on-trend concepts of privacy by design. I have not had space in this article to discuss spectrum availability issues but needless to say the already congested 2.4Ghz that most drone operators currently use will become more of a challenge for operators and this will require engagement by telecoms regulators such as Ofcom in the UK. As drones become more automated and a human pilot is less involved in flight, complex issues of liability will challenge lawyers and insurers. Finally, the sensible integration by incremental regulation of drones into airspace that is happening to varying degrees in several developed countries could be radically overhauled if there is a serious accident or if a terrorist or protest organisation were to use the technology to its advantage in some spectacular way.
The UK is at the forefront of drone technology, embracing innovative uses of the technology and, just as importantly, drone focused regulation, airspace and privacy laws. It should seize the opportunity and position itself to exploit the major economic and social impact that drones will undoubtedly have.
Peter Lee is a committee member of the SCL Technology Group and a Senior Associate in Taylor Vinters’ Commercial Technology team where he leads the firm’s unmanned systems practice. Peter is recognised as one of Europe’s leading drone lawyers. He speaks and writes widely on the subject and acts for several clients in the drone industry. You can read his blog ‘drones and the law’ here: http://dronelaw.blogspot.co.uk/
