In Droning On, Charlotte Sandry introduced readers to the challenges posted by Unmanned Aerial Vehicles (UAVs) posted to existing Canadian nautical regulations and to privacy breach issues.
Canadian public is cautious about the growing use of UAV (unmanned aerial vehicle) by the state and the business community, especially in the field of energy sector where vast distance is required to cover for security surveillance and maintenance needs, according to Winnepeg aviation lawyer Joe Barnsley. The benefits of UAVs is obvious in terms of speed and safety (at least for the operator). Charlotte Sandry, too, believed that Canadian vast landscape offers an opportunity for widespread use of UAV in the area of navigation mapping, search-and-rescue, resources exploration, traffic and utilities facilities monitoring, as well as security surveillance. However, Barnsley cautioned that Canadian aviation regulations lag behind the growing use of UAVs.
According to Barnsley, the current Canadian Aviation regulation classified UAVs as an aircraft without human onboard to control it. There are only two categories of aeronautical regulations (under the Aeronautics Act) administered by Transport Canada that is based on aircrew certification and aircraft certification. Aircrew certification is licensing to an individual based on the type of platform he/she flies. It can be a conventional aircraft, glider, balloon, gyroplane, helicopter or an ultra-light airplane. The other one is classification of the flying platform itself based on intended use (as aerobatics or utility for example). None of the two existing classifications apply to the use of UAVs. The only regulation that remotely applies to the use of UAVs can be found in Transport Canada website as “special flight operations or air operator certificate”. Applicant to the aforementioned certificates must provide a detail flight plan and contingency (with emergency) plan on a case by case basis. According to Transport Canada, it takes at least 20 days to process and to review the application for the special flight operation certification. According to Sarah Fitzpatrick and Kenneth Burnett, from Miller Thomson LLP in Vancouver, suggested that application for UAVs use under those condition will be very inefficient and impractical because “a lot of jobs are date-specific and if each job requires a separate SFOC, then there is a possibility that a SFOC will not be issued in time.”
Safety is also another issue with the impending proliferation of UAVs, according to Joe Barnsley because there is no standardize test for fit of the UAVs or the person who is controlling it, air space navigation and midair collision with an aircraft can be problematic. Current aviation legislation has no coverage of UAVs in those aspects. Charlotte Sandry’s offered a limited degree of reassurance when Transport Canada admitted that the regulatory system and industry technology is unprepared to accept the pending widespread use of UAVs in the civilian market. There were two working reports done by the Federal Government since 2007 recognizing the economic benefits from the use of UAVs commercially and the need for a comprehensive legal framework to exploit the proliferation of commercial UAVs use (with final report due in 2017).
Privacy is always an issue for obvious reason. A report dated March 2013 from the Office of the Privacy Commissioner of Canada highlighted the danger of invasion of privacy when an UAV’s takes aerial video or photographs without the public’s consent or acknowledgment. Existing Personal Information Protection and Electronic Documents Act is insufficient for privacy protection because the Act does not apply to data collection by covert operation (of UAVs). The Office said the public is rightfully concerned when real estate agents or T.V. producers rely on UAVs to produce advertisement without their knowledge or consent. Similarly, fear for privacy breach occurs when Amazon’s UAVs pointed their camera to people’s window for checking if people are at home to ensure delivery or recording people’s absence for delivery charge. Another major area of concern for privacy breach is when facial recognition and enhancing features are administered to data covertly collected by law enforcement agencies operated UAVs. One privacy lawyer David Fraser, a partner at McInnes Cooper’s Halifax office, suggested that the use of UAVs in surveillance is not the problem but it is how the data are collected and stored will be a privacy and legal issue.
Charlotte Santry concluded that there is a lot to catch up with our privacy and aviation laws. UAVs technology are here to stay and expanding, it provides a lot of cases for legal practitioners to work on when privacy, transportation and aviation matters are at stakes.
Canadian Lawyer. (2014). Droning On. Retrieved from http://www.canadianlawyermag.com/4989/Droning-on.html