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The privacy aspect of drones for police surveillance: what are the possibilities, what are the limits and what lies ahead?

Euro-View: Dutch Firm Considerati on Privacy and Drones

The development of unmanned aerial vehicles (UAVs), more commonly known as drones, has literally taken an enormous flight in recent years. Currently, drones are primarily used for military purposes, but the police are also starting to use them more and more for law enforcement purposes.

But what about the use of drones for police surveillance and their impact on privacy? Their use is not without privacy risks for citizens.

Drones are used increasingly used for a range of civil applications, from fire detection and dike inspection to aerial imagery and sport and leisure. However, the specific technical nature and deployment of drones raises new questions about their responsible use and the adequacy of current legal frameworks in Europe.

Drones differ in several ways from traditional forms of observation such as patrolling by human agents or surveillance with CCTV cameras, which is regulated by law. Surely the most important difference is that drones can observe a much larger area than is currently possible with these other techniques.

Another difference is that drones are harder to spot and identify, as they are much less visible and audible than manned aircraft. For instance, with its small motor and a wingspan of just one and a half square meters, the US military’s Raven drone is much harder to notice than a manned helicopter. Similarly, the American Reaper drone flies at an altitude of up to five kilometers and is all but invisible to the naked eye.

In addition, it is more difficult to link the purpose of the surveillance to the use of drones. When a drone observes an area of several square kilometers, it might not obvious for people in the area why there is a drone circling above their heads. A final difference is the scale of application: in the future, it is likely that drones will be deployed on a much larger scale as their costs continue to decrease.

These unique aspects of drones raise specific privacy questions.

Whether there is a privacy infringement must be assessed case by case. However, there are some aspects that should be taken into account. First, the infringement must be foreseeable for citizens. Unlike police cars, drones are hardly visible, audible or recognizable and it might be unclear for individuals whether they are observed, who is observing them and for what purposes. For the moment, it seems that the “foresee-ability” of surveillance by using drones is insufficient.

Second, whether someone can claim the protection of his or her private life partly depends on whether the alleged breach takes place in a situation where citizens can have a ‘reasonable expectation of privacy’. For example, it is hard to argue that someone in a crowded shopping street has a reasonable expectation of privacy.

However, drone surveillance could possibly cause situations where citizens in public spaces may have a reasonable expectation of privacy. This could apply to a person walking in nature by himself. Furthermore, drones are able to observe non-public enclosures such as gardens, workplaces and courtyards where people have a reasonable expectation of privacy.

Third, the storage of camera images constitutes a larger privacy infringement than merely observing things with the aid of cameras. Before images captured by drones are stored, a decision should be made whether the images can actually be stored and further processed. For this decision, the fact that drones can potentially observe far more than a traditional CCTV camera must be taken into account.

Finally, there is a risk that ‘normal’ observation with drones turns into systematic observation due to their high mobility. Observation is systematic when a more or less complete view is obtained about certain aspects of someone’s life. Relevant elements include duration, place, intensity, frequency and whether or not technical devices are applied. Systematic observation constitutes a much larger breach of privacy than normal observation.

To deploy drones in a responsible manner, a clear assessment framework should be established to determine whether the use of drones in a specific context is justified. This framework should be used to assess what is appropriate and proportional in each given situation. Thus, one should pay explicit attention to the fact that the deployment of drones differs considerably from traditional forms of observation and entails significant privacy risks.

The scope of the application of drones should be clearly limited. This could include restrictions regarding the duration of deployment, the technical payloads that a drone carries and the areas they observe. Above all, the use of drones should be foreseeable for citizens.

Drone technology is developing fast: continued vigilance regarding their deployment is urgently needed.

     Bart Schermer is partner at the legal consultancy firm Considerati and assistant professor at Leiden University at its “eLaw @ Leiden” department. He can be contacted at: schermer@considerati.com
     Marjolein van der Heide is a consultant at Considerati. She can be contacted at: vanderheide@considerati.com

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