Privacy In The Air
Written by Rav P Singh and Samraat Basu
The rapid influx and use of drones has raised several legal and policy challenges. To address the same, the Directorate General of Civil Aviation (DGCA), in 2014, prohibited the use of drones in India for civil purposes. In April 2016, the DGCA released its initial draft guidelines for drone regulation followed by the updated draft guidelines in November 2017. While both the guidelines released by the DGCA were only in draft form, they provide an important insight into the DGCA’s likely regulatory approach.
The DGCA has accorded minimum importance to protecting the privacy of the citizens. For example, there are no proposed restrictions on the operation and use of drones equipped with cameras, microphone, video devices or drones which are otherwise capable of storing and transmitting information. Recognising the threat to privacy posed by camera-equipped drones, countries such as Germany (which has about 4,00,000 drones) have prohibited flying of camera or video-equipped drones over people’s homes. Certain states in the US have drone privacy laws regarding filming someone without their permission and filming things like car accident sites or active crime scenes with penalties ranging from fines to jail time. Such rules have the effect of not only protecting people from unwarranted snooping, but they also protect property rights.
Typically the owner of a property not only owns the land but can also exercise proprietary rights over the ground beneath and on the column of air above the land, up to a certain height. Thus, flying drones over private properties without permission would amount to trespass unless flown above a certain height. There needs to be a minimum stipulation of height above which drones can fly in order to prevent operators from trespassing on private property.
Determining liability standards for accidents or drone crashes is another vexed issue that the DGCA seems to have sidestepped. It is important to establish clear liabilities for drone operators in the event of a crash, especially if an accident is caused due to the negligence of the drone operator. In view of the likelihood of drone accidents, countries like the UK have introduced safeguards whereby drones are not allowed to operate within 150 metres of a congested area. The DGCA needs to reformulate its guidelines to incorporate such precautionary rules and prescribe clear standards for determining liabilities for drone accidents. Currently, it has been provided that no person can fly a drone over a densely-populated area without prior permission. This needs to be qualified with respect to what constitutes a densely populated area and the distance at which a drone can be flown.
While DGCA’s draft guidelines address some key aspects, they do not go far enough in being user-friendly. For example, it is difficult to imagine why every prospective drone operator intending to fly a drone, which weighs more than 250 grams should seek clearance from the home ministry in order to obtain a unique identification number for the drone. Obtaining clearance from the local police station, like in the case of issuance of passports should suffice and would be much less of a hassle for people living in different parts of the country.
Drones can be purchased online in India but the ban on their civilian use has been in place for more than three years. The ban on use of drones is not only undesirable, it is also impractical as widespread use of drones continues. The ban should certainly be re-assessed and overturned. The draft drone regulations being contemplated by the DGCA are a step in the right direction and indicate that the ministry is re-considering the blanket ban.
We hope that the DGCA uses this opportunity to implement forward-looking and people-friendly regulations which ingrain the protection of civil liberties. Protection of privacy, limiting the use of drones for surveillance and minimising the possibilities of drone-related accidents should be designed as part of the inherent structure of drone regulation.