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23 Jan 2018

The Distant Drone of the Future

The legality of drone activity is usually questioned only in the context of foreign warfare.  However, the exponential rate of technological advancement in this area also raises criminal law questions stemming from the invasion of a person’s privacy.

Drones with cameras and other surveillance equipment are now available on the open market (such as online at Argos) at affordable prices, ranging from £49.99 to just under £2,500. Many of these devices have cameras (some of 20 megapixles). Moreover, these sophisticated technological devices have the capability to enter (and potentially photograph or film) almost anywhere. That includes private spaces such as gardens and, in the right conditions, the interior of a dwelling. The implications for privacy are both obvious and serious.

Airborne cameras have already been used to breach privacy. In 2017, a South Yorkshire Police Helicopter Crew were acquitted of misconduct in public office – the charges alleged filming various people naked whilst on private property. One woman, filmed sunbathing naked in her garden, said she felt being filmed was “a complete and utter violation” of her privacy which made her “sick”.[1] This particular incident didn’t involve a drone but the parallels are clear.

So, does the law have anything to say about domestic drone use? The answer is a qualified ‘yes’. Legislative restrictions on drone use do exist, but their focus is primarily safety, not privacy. As with other mechanised flight, drone activity is governed by the unassumingly titled Air Navigation Order 2016 (‘ANO’). Regulation 94 of the ANO requires, among other things, that the operator of small unmanned aircraft (aka drones) maintain a level of “direct, unaided visual contact” with the aircraft sufficient to monitor its flight path in relation to other aircraft, vehicles, people, etc. There are also provisions prohibiting the dropping of items (and, hearteningly, animals) from aircrafts in such a way as to harm property or people. Beyond this, drone flight is largely unrestricted, unless your device carries a camera or any other equipment capable of “surveillance or data acquisition”. If it does, except during take-off and landing, the device cannot be flown:

(a) over or within 150 metres of any congested area;

(b) over or within 150 metres of an organised open-air assembly of more than 1,000 persons;

(c) within 50 metres of any vessel, vehicle or structure which is not under the control of the person in charge of the aircraft; or

(d) within 50 metres of any person (except the person operating it or any other person under their control).

By virtue of regulation 265(6) and Schedule 13, Part two, Chapter one of the ANO, breaching any of these requirements is a criminal offence carrying a maximum penalty of level four on the standard scale (currently £2,500).

The ANO is far from comprehensive. Whilst tighter regulations apply to drones that carry cameras, the regulations are silent on what those cameras can be used to record and on their specifications (e.g. their zoom capability). A 50 metre exclusion zone around unsuspecting persons makes no difference if the drone carries a powerful camera. Equally, certain private activities could be easily captured at well over 50 metres, even if the camera is not particularly powerful (sexual activity on private property is the most obvious example).

Even without any camera, a drone can still be used to harass someone without breaching any of the relevant regulations (i.e. hovering over the garden of an ex-partner or dropping unwanted letters for their attention). The restriction in regulation 94 only prohibits the dropping of items in such a way as to cause damage.

Given the paucity of drone-specific legislation, prosecutors seeking to convict individuals for misuse of these devices will have to rely on the general criminal law. Fortunately, the breadth of certain offences means that such an approach is workable. The alleged offence in the South Yorkshire helicopter case, misconduct in public office, is notoriously difficult to prove and clearly inapplicable to the private use of drones. However, other offences are better suited to the task.  In particular, harassment legislation provides useful tools for police and prosecutors. These offences are applicable to almost any factual situation and focus on what the defendant ought to have known about the consequences of their actions. Any physical contact between a drone and a complainant could equally be dealt with as a common assault (there being no requirement for direct physical contact between the defendant and another individual).

In short, the general criminal law seems well equipped to deal with potential drone-related offences, even if the ANO is not. The basic problem with the ANO’s drone provision is their focus. These regulations are the main legislation secondary governing mechanised flight in UK airspace and, quite rightly, focus on safety. Doubtless, the relevant law makers were more concerned with mid-air collisions than aerial voyeurism. It is a testament to the flexibility of English law that even new technologies can be accommodated within the existing framework without the necessity for legislative change. It is to be hoped that, unlike in other areas, politicians and civil servants refrain from the urge to make law for the sake of doing so.

[1] See the Guardian article at: https://www.theguardian.com/uk-news/2017/aug/04/south-yorkshire-police-helicopter-crew-cleared-over-filming-people-naked

 This article was originally published in CrimeLine and can be accessed here

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