Drones: the end of the right to privacy?

COMMENTARY – Drones are now a part of our everyday life. We do not only share the aerial space with them, but also our private moments. However, to what extent can drones invade our privacy? For the moment, the growing proliferation of drones doesn’t seem to be regulated thoroughly. International laws and conventions protect the right to privacy but there is no resolution specifically targeted at the control of the employment of drones by both authorities and private users. As a global society, we should start to question the use of these new technological devices and wonder what the boundaries of their operation should be if we want to safeguard our right to privacy, which constitutes one of the main elements of a democratic society.

Anglais

Source: Pixabay.

Where do drones come from?

Drones are, essentially, aircrafts that do not carry human operators (i.e. ‘unmanned aerial vehicles’ or ‘UAVs’) and that are “capable  of  operating  remotely  or  autonomously  on  a  pre-programmed  flight  path.”1 There are many different types of drones and their size, shape and function can vary. Drones can be as small as a bee or the size of commercial planes. For instance, as The New Yorker’s journalist Steve Coll illustrated, “the models used by the C.I.A.—the Predator and the Reaper—look like giant robotic flying bugs, with unusual flaps and pole-like protrusions.”2 Moreover, they can be equipped with many extra components - just to name a few: cameras, thermal scanners, licence plate readers etc.


Initially conceived for military use, drones are now extremely common among civilians and their commercialisation has been growing in the past few years. However, importantly, their inner military origin should not be forgotten. Drone technology is being used extensively in the military field – many will be familiar, for instance, with America’s use of armed drones in Pakistan, Yemen and elsewhere.3 The widespread operation of these weapons has provoked heated debates among stakeholders. Particularly, the main critique coming from the civil society is focused on the use of “fully autonomous” drones, which are the ones that do not need remote piloting and are often associated with automatic weapons. The human rights implications that arise with the use of these drones are evident: no selection of target means high probabilities of harming civilians, thus violating international humanitarian law and human rights law. Moreover, the civil society has raised concerns over the issue of the use of military drones outside of conflict zones.4


Hence, the issues surrounding the use of drones in nowadays society are numerous. This article will explore the operation of drones particularly within civil use and the intersection with privacy rights. Nevertheless, the original military purpose of drones as weapons should always be born in mind if we want to fully comprehend the function of these technologies and the intersection with the laws aimed at regulating their employment.

 


Drones in the civil world   

     Private sector

The use of drones in the private sector has increased drastically in the past few years, or even months. Companies and individuals can now buy and employ their drones for a multitude of purposes. UAVs can be bought in stores everywhere in the world for a relatively low cost. Commercial drones are, in fact, far cheaper than anything that requires an on-board pilot and they are mainly used for taking pictures, videos and generally to acquire images. Companies can employ them also to monitor oil and gas pipelines.5 The proliferation of high technologies such as hyperspectral and thermal imaging has fostered interest in drones and this increase is only likely to be more prominent in the future.6 Thus, drones are now extremely accessible and, more than that, they are becoming highly trendy in the tech world. However, what do private owners of drones do with the images taken? What are the boundaries – if any - of the private use, either by individuals or companies, of commercial drones?


An interesting example comes from the use of Facebook’s drone “Aquila”, which is meant to bring affordable Internet connection in remote areas of the world. Facebook is not the sole company employing UAVs, mirroring the efforts that have been already made by the military and by NASA with its solar-powered Helios, as Christopher Lum (University of Washington) has noted.7 Now, as Kerri Cahoy (MIT's aeronautics and astronautics department) has pointed out, “the pace of innovation from technology giants and start-ups is ushering in an important new era of experimentation.”8 Ultimately, Facebook and Google have a huge incentive to spread the Internet as far and as wide as they can. Their business models depend on overseas growth and they are determined to reach every single person on the planet. Facebook's goal: to make Internet access "radically cheaper," says Facebook's chief technology officer Michael Schroepfer.9 The question then is: how far can we go and how do we regulate the use of these technologies in the private sector?


     Surveillance

In terms of surveillance, as Bard College’s Jared Rankin pointed out, “it is well documented, and much discussed, that a wide variety of surveillant technologies are becoming more sophisticated at an exponential rate, and that the price of these technologies is dropping accordingly.”10 In this sense, drones are completely changing the nature of aerial surveillance. They are quiet, versatile and can maintain a high rate of surveillance for around 24 hours (now called “persistent surveillance”). For this reason, they’ve been employed by authorities for many purposes. For instance, the FBI has used a small fleet of drones for law-enforcement surveillance. Moreover, the U.S. Customs and Border Patrol has employed them before to monitor the American border with Mexico.11 Moving on to a European example, in France drones are now used by the police to track criminals and to facilitate their identification.12


     Positive outcomes?

As much as this won’t be the real focal point of this article, it’s important to underline that drones have been used in the context of developing countries for vitally important operations. An example is the use of drones for blood transportation in Rwanda. As the Guardian13 reported, it’s extremely difficult to transport blood and other medical resources in the African country due both to the conformation of the territory – particularly hilly and steep - and to the lack of resources. In this context, drones have been operated to act on behalf of human pilots ultimately to save lives. Thus, the importance of technology should not be underestimated. Instead, it should be implemented in a just and reasonable way such as in the context of countries that are now facing a different pace of development and where primary and vital needs go beyond issues of privacy or democracy.

 


Privacy issues and regulation

The right to privacy is recognised worldwide and needs to be protected as a fundamental one, especially nowadays. Article 12 of the Universal Declaration of Human Rights (UDHR) recites:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”14

Aside from the presence of a powerful tool such as the UDHR, the right to privacy was further taken into great consideration in relation to the digital age by the OHCHR.  The Human Rights Council, in fact, adopted in 2014 Resolution 68/167 which deals specifically with the protection of the right to privacy in the digital age. The Council fully recognised the particular need to consider the human rights implication in a context of “interception of digital communications and collection of personal data, including on a mass scale, with a view to identifying challenges and best practices.”15


Provided that the importance of the right to privacy in the digital age is impossible to be denied, what are the consequences of the presence of drones in our daily life? Are legal mechanisms efficiently protecting our right to privacy in relation to drone operation? Is surveillance properly regulated? The case of the USA, as one of the countries that has employed drones the most and where a lot of academic research on UAVs has been conducted, will be thoroughly analysed.

Firstly, it’s important to point out that the United States Constitution does not establish an explicit right to privacy, “nor does it offer a concrete definition of what privacy is; in the words of Justice William Douglas in 1965, the concept “emanates” from the Bill of Rights.”16 As The Economist17 highlighted, discussions about privacy often involve the question of why it is something worth protecting. An explanation comes from Julie Cohen (Georgetown Law School), who argues that “the liberal self and the liberal democratic society are symbiotic ideals” since “democracy needs privacy to breath.”18 Hence, we would need privacy to fully implement democratic values. However, in spite of the attempts to define ‘privacy’, the concept in itself remains quite blurred and imprecise and this does not help in the implementation of efficient laws to protect citizens.

Moreover, with the use of technologies such as drones, the difficulties that arise are even more evident. Private actions can be now easily recorded and disposed of, in proportion to the expansion of surveillant technology, whose cost is dropping. Consequentially, social expectations of privacy are changing. Still, in presence of these threats to the right to privacy, no measures of transparency currently exist in the American legal system. There is the urgency, therefore, for an innovative and progressive set of rules to protect the citizens. For the time being, “several states are enacting or have already enacted statutes to regulate drone use” which can be used jointly with the Fourth Amendment’s reasonable expectation of privacy test, used to delineate the bounds of Constitutional protection.19 The real danger of pervasive surveillance is, in fact, that it will shape eventually “the actions, thoughts and personalities of those being observed.”20


The American example can be extremely useful for other states, particularly European ones which are now experiencing the proliferation of drones but where the debate on the issues concerning the use of UAVs is not as explored as in the American continent. The European Commission has issued some guiding principles for the private use of drones. Remarkably, Principle No 4 states:

“Public acceptance is key to the growth of drone services.”21

This is an important aspect to take into account when discussing right to privacy issues that stem from the use of UAVs. As Jared Rankin has noted, it is perfectly possible that the “public reaction to the prospect of drones emerging in domestic space, it is very possible that society will in time become accustomed to this technology, just as those in urban centers have acclimatised to an environment of prevalent police surveillance platforms such as CCTV systems.”22 This is a powerful argument that could be used in this context to trigger new debates. What if the discussion on drones was to reopen more concerns related to the right to privacy? There is no clear answer to this question since, more generally, there is no real definition of privacy. However, this could be a new starting point that could allow us to assess the current state of our right to privacy and to reconsider the real meaning and philosophy behind it as a fundamental human right, while critically assessing the use of drones in our society.

 

 

1MATITEYAHU Taly (2015) “Drone Regulations and Fourth Amendment Rights: The Interaction of State Drone Statutes and the Reasonable Expectation of Privacy”, Columbia Journal of Law and Social Problems, 48. Available at: http://www.columbia.edu/cu/jlsp/pdf/Spring2015/Matiteyahu.pdf

2 COLL Steve (November 2014) “The unblinking stare – The drone war in Pakistan”, The New Yorker. Available at: http://www.newyorker.com/magazine/2014/11/24/unblinking-stare

3 K.K. (March 2015) “Drones and privacy - A looming threat”, The Economist. Available at: http://www.economist.com/blogs/democracyinamerica/2015/03/drones-and-pri...

4GRIEK Ilse (June 2014) “Drones and Human Rights: Emerging Issues for Investors” Sustainalytics. Available at: http://www.sustainalytics.com/drones-and-human-rights-emerging-issues-in...

5 K.K., Op.Cit.

6RANKIN Jared (March 2014) “Drones and the Shifting Expectation of Privacy”, Center for the Study of the Drone at Bard College. Available at: http://dronecenter.bard.edu/drones-and-privacy/

7GUYNN Jessica (July 2016) “Facebook's Aquila drone completes first test flight”, USA Today. Available at: http://www.usatoday.com/story/tech/news/2016/07/21/facebooks-aquila-comp...

8Ibidem

9Ibidem

10 RANKIN, Op.Cit.

11 K.K., Op.Cit.

12 NORMAND Jean-Michel (September 2016) “Le maire d’Asnières, Big Brother et les drones”, Le Monde. Available at: http://drones.blog.lemonde.fr/2016/09/08/le-maire-dasnieres-big-brother-...

13 FLOOD Zoe (July 2016) “From killing machines to agents of hope: the future of drones in Africa”, the Guardian. Available at: https://www.theguardian.com/world/2016/jul/27/africas-drone-rwanda-zipli...

14Universal Declaration of Human Rights 1948. Available at: http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

15 OHCHR (January 2014) “Resolution 68/167. The right to privacy in the digital age”, General Assembly, 68th session, United Nations. Available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/68/167

16 RANKIN, Op.Cit.

17 K.K., Op.Cit.

18Ibidem

19 MATITEYAH, Op.Cit.

20 K.K., Op.Cit.

21 European Commission (March 2015) “EU Vision for drone integration”, ICAO Symposium. Available at: http://www.icao.int/Meetings/RPAS/RPASSymposiumPresentation/Day%201%20Ke...

22 RANKIN, Op.Cit.

 



MR – Research Assistant at CIPADH 

 


Webography

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COLL Steve (November 2014) “The unblinking stare – The drone war in Pakistan”, The New Yorker. Available at: http://www.newyorker.com/magazine/2014/11/24/unblinking-stare

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GRIEK Ilse (June 2014) “Drones and Human Rights: Emerging Issues for Investors” Sustainalytics. Available at: http://www.sustainalytics.com/drones-and-human-rights-emerging-issues-in...

GUYNN Jessica (July 2016) “Facebook's Aquila drone completes first test flight”, USA Today. Available at: http://www.usatoday.com/story/tech/news/2016/07/21/facebooks-aquila-comp...

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MATITEYAHU Taly (2015) “Drone Regulations and Fourth Amendment Rights: The Interaction of State Drone Statutes and the Reasonable Expectation of Privacy”, Columbia Journal of Law and Social Problems, 48. Available at: http://www.columbia.edu/cu/jlsp/pdf/Spring2015/Matiteyahu.pdf

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OHCHR (January 2014) “Resolution 68/167. The right to privacy in the digital age”, General Assembly, 68th session, United Nations. Available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/68/167

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