Thursday, October 29, 2015
The technical sophistication of unmanned aerial vehicles, or ‘drones’, is developing at lightening pace and consequently, new applications of drones are emerging every day. However, it is the very appeal of the technical capability of drones, which is causing alarm amongst privacy advocates, civil liberties groups and legislators, both nationally and Europe-wide. The national legislation currently ‘regulating’ drones was not formulated with drones in mind, and the pan-European framework currently being formulated by the European Aviation Safety Agency (EASA) for the operation of drones, is not likely to be in effect until late 2016. This is causing privacy advocates, civil liberties grounds and national legislators to express concern as to the protection of data, privacy and the environment, data protection and other rights of citizens in the interim.
In a series of articles, Philip Lee will examine national laws and rules which apply to drones in the absence of European-wide regulations and explore whether these laws and rules are sufficiently robust to address the data protection, privacy and environmental concerns, among others, being expressed. This article will be the first in the series, and will provide readers with a brief introduction to the disruptive technology that is drones.
Drones are essentially unmanned robots, either pre-programmed or remotely controlled. The most common drones are aerial drones, typically controlled by an app on a smart phone/tablet, or by remote control.
The technology behind these aerial drones is developing at break-neck speed. Most drones are now equipped with high definition cameras, which allow for live streaming and photography mid-flight. Advanced thermal and infra-red imaging capabilities allow some drones to see through walls, and facial recognition technology can be used to track the movement and whereabouts of objects and persons.
European-wide rules for regulating drones have not reacted to drones’ advanced development. Cognisant of this fact, the EASA recently launched a public consultation on the introduction of a pan-European regulatory framework for drones which weigh more than 150kg. The consultation ends on 25 September 2015, following which the EASA plans to submit a technical opinion to the European Commission.
The EASA proposes three categories of drone operations, with categorisation being dependent on risk: open, specific and certified. In other words, safety requirements will be linked to the risk an activity poses to the operator and to the public. According to the EASA, this approach is being used to ensure that operator and public safety is not compromised, all the while maintaining a flexible environment for this promising industry to grow.
Even with the introduction of the European regulations, national authorities will remain responsible for legislation governing drones which weigh less than 150kg.
The Irish Aviation Authority (IAA) has published guidelines on the use of drones. According to these guidelines, drones used for recreational purposes (weighing < 20kg) are regarded as akin to model aircrafts, and compliance with the Irish Aviation Authority (Rockets and Small Aircraft) Order S.I. 25 of 2000 is required. Controllers do not need to obtain permissions or permits to fly drones and do not need formal piloting qualifications. However, controllers are required to comply with the so-called ‘Rules of the Air’ which include a requirement that special permission must be obtained from the IAA to fly a drone above an urban or built-up area.
Controllers operating drones for other purposes, including commercial, governmental or research purposes must comply with (1) the Aeronautical Notice O.63, (2) the Operations and Advisory Memorandum 02/12, and (3) the ‘Rules of the Air’. Controllers must obtain (1) an ‘aerial works permission’ and (2) a ‘permission to operate a Remotely Piloted Aircraft System (RPAS) in Irish airspace’ from the IAA. Controllers must also hold a private pilots’ license or have completed a training course from an RPAS-approved facility. Non-recreational users are also required to have third party liability insurance.
The aforementioned rules and regulations apply regardless of whether the controller is using the drone over public or private property.
In the absence of pan-European regulations, rules applicable to the operation of drones weighing more than 150kg differ as between member states. Furthermore, national authorisations obtained by controllers of commercial drones do not benefit from mutual recognition, limiting the ability for organisations in different member states to collaborate effectively in the development and operation of drones.
As for drones weighing less than 150kg, as long as national authorities remain responsible for their regulation and in the absence of European guidelines for same, there will be inconsistencies in approach. What’s more, the IAA has admitted that it has no jurisdiction over the data protection, privacy and other concerns associated with the operation of drones.
While attending an event held by the recently established Unmanned Aircraft Association of Ireland, Minister for Transport Pascal Donohoe conceded that while commercial regulations have been in place in Ireland since 2012, these are not sufficient to deal with current considerations.
“There is a real need now within Ireland and within Europe to look at what kind of laws will be needed now and in the future to deal with matters in relation to security, in relation to privacy, and in relation to how different kinds of units will be regulated,” he said.
The market for civil drones is evolving fast and has huge potential. But until the safety concerns and outstanding legal questions surrounding drones are addressed in a proportionate manner by national and European legislation, large-scale development and adoption of drones will be scuppered.
Perhaps the greater challenge lies with seeing how environmental, property and data protection law might need to be adapted in order to meet the challenge that is presented by drones.
For further information contact:
Sarah Jenkinson, Associate