Wednesday, November 04, 2015

Let's all avoid technopanic in the call for additional privacy regulation for drones

Full disclosure: I'm not a bystander to this discussion. I'm an avid drone user, having purchased a training drone and then DJI Phantom 3 Advanced in May of this year. I've been capturing, editing and proudly showing relatively unique perspectives of the beautiful province in which I live. Feel free to check my videos out:

Over the past few months, Transport Canada has been engaged in a consultation process to look at how to safely integrate unmanned aerial vehicles into Canadian airspace. This involved a call for comments regarding draft regulations or proposed regulatory approaches. Sensibly, Transport Canada was focused on their mandate under the Canadian Aviation Regulations, which is to enhance safety and competition in Canadian airspace.

The Office of the Privacy Commissioner of Canada submitted a response dated August 27, 2015. (Notably, this was posted on the OPC's website in October, well after the opportunity to respond.) There has been some reporting on this (Protect schools, homes from drones' prying eyes, privacy czar says | Toronto Star), but not much.

If you think there's some vacuum regarding privacy and the use of drones, think again. Federal agencies are subject to the Privacy Act and the Charter. Provincial agencies are subject to relevant Freedom of Information and Protection of Privacy Acts and the Charter. Private companies are regulated under the Personal Information Protection and Electronic Documents Act or the Alberta, Quebec and British Columbia equivalents. All of them -- and private citizens -- are subject to the Criminal Code for voyeurism and the torts of "invasion of privacy". There really is no gap. And in most of them, we consider whether there is a reasonable expectation of privacy in the totality of the circumstances.

With respect, I think at least part of the position articulated in their submission is wrongheaded and is an example of technopanic. The Commissioner's office calls for the creation of a completely new concept of "sensitive and protected areas". These are areas that " while perhaps public, carry with them some expectation of privacy when people use them". Here's the relevant sections of the submission:

Sensitive and protected areas

From a safety perspective, operation of UAVs in crowded areas, around aerodromes, airports and heliports has already been restricted, both in Canada and many other countries. Other jurisdictions, including many in the US, have placed outright bans on usage of UAVs in certain sensitive areas where people might congregate or other aircraft might be operating – certainly until such time as sense and avoid systems are better developed and more widely deployed.

We would encourage CARAC members to give thought to exploring a similar line of reasoning with regard to privacy concerns. Residential areas, schoolyards and shelters, hospitals and prisons, places of worship and memorial sites – all come to mind as spaces which, while perhaps public, carry with them some expectation of privacy when people use them.

As with identification methods noted above, we do not here have an exhaustive list of locations in mind, nor would we recommend an outright prohibition on usage in these areas, but would ask CARAC to consider developing a best practices approach to flag certain spaces like those mentioned as privacy sensitive (places where individuals’ sense of potential intrusion is generally heightened). Just as we would anticipate organizations concerned about their own security would be alarmed by sudden increases in the use of UAVs around their property, we would expect citizens could be similarly concerned if certain spaces were encroached upon.

For a recent specific example of regulation in this context, please see guidance issued this summer by Argentina’s Data Protection Authority, and where investigative use is contemplated, you might refer to our own Office’s Guidelines on the Use of Video surveillance by Public Authorities.

One of the great characteristics of Canadian law is that it is technologically neutral. We generally focus on the mischief, rather than the instrumentality. Fraud is fraud, regardless of whether it is done with a quill, a pen, a phone or a fax machine. While we may get excited about new technologies, we don't legislate about them specifically unless there really is a need to do so or a clear gap in the law.

With "sensitive and protected areas", we are still talking about public spaces. Is there any difference between taking a photo in a residential area with a DSLR or with a drone? I have a 300mm lens for my Nikon D90 and any law that said I couldn't use it to take photos in the park down the street would be unconstitutional. My drone has a 20mm wide angle. A military predator drone can do much better than anyone's civilian digital camera. If there is a problem with people taking photos in parks or residential areas, make a law that deals with photos in residential areas or parks. And any law would have to apply to me in the same what that it applies to a TV news crew. (And then see whether it survives a Charter challenge.) It should not matter what technology you use to do that. If the problem is the effect, focus on the effect. Not on the shiny new technology that you think may be creepy.

Everyone who uses these devices needs to follow all relevant laws, which include privacy laws. And that covers it.

If you want more about this, I just gave a presentation at the Unmanned Systems Canada 2015 conference on privacy law and drones and will be speaking at the Canadian Media Lawyers Association - Ad Idem conference on privacy and drones.

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