The rising private use of drones should prompt a rethink of our privacy laws

By Matthew Albert and Dale Straughen

Unlike many modern democracies, Australia has no right to privacy enshrined in law. This lacuna is coming into increasingly sharp focus with the rise of the private use of drones equipped with cameras and microphones. In the absence of a right to privacy, and in circumstances where legal protection against surveillance by individuals is ill-equipped to deal with emerging technologies, it is time for incremental harmonisation of the legal landscape on this important issue.

Until recently, technology did not allow for remote surveillance by individuals. Any such surveillance involved large, cumbersome and costly devices controlled at short distances. Now, for as little as $188, anyone can purchase a drone which can be controlled from great distances to capture sounds and images without the knowledge of the person being recorded. The device can be as small as a bee and its records can be uploaded within a beat of a bee’s wings. As time goes by, drones will only become cheaper, more popular, and more powerful as surveillance devices.

Just as our imaginations might lag behind the possible uses of this technology and how it can be both beneficial and detrimental, so too does our law no longer seem fit to meet community expectations of privacy. It makes no sense that it remains lawful for a person to use a drone to film their neighbour engaged in private activity. Similarly, while it is not presently prohibited to covertly track a car in Victoria, as soon as the car crosses into NSW, it is illegal. These examples simply fail the common sense test.

These, among many other examples, led the Parliamentary Roundtable on Drones and Privacy to conclude last July that the piecemeal nature of existing privacy regulation results in inadequate protection of privacy rights and creates confusion and uncertainty as to the law’s scope and effect. As the Australian Privacy Commissioner, Tim Pilgrim, has noted: “individuals who may be subject to surveillance via drone technology may not currently be able to seek appropriate or consistent redress across the Commonwealth”.

Many areas of the law could be invoked in the context of private misuse of drones. The Civil Aviation Safety Authority regulates the height at which drones can fly. The Commonwealth Privacy Act is concerned with collection of personal information, including by drone, but only by corporations with an annual turnover of more than $3 million. As the Federal Privacy Commissioner has noted, this law “does not … cover the actions of individuals in their private capacity, including any use of drones by individuals”. State and territory surveillance laws offer varying levels of protection, but all are limited – for example, only Tasmanian and Queensland legislation protects against devices making audio recordings whereas other states’ laws are singularly concerned with visual recordings. Tort law – an area of law that provides compensation for harms done to a person – provides some limited national protection in the scenario of a drone causing a trespass or in circumstances where it falls and injures a person or property. The criminal law may also come into operation in circumstances where, for example, a drone was used to stalk a person.

“For as little as $188, anyone can purchase a drone
which can be controlled from great distances to capture sounds and images
without the knowledge of the person being recorded.”

But what of a drone operated by an individual hovering at a safe height over a stranger’s back garden and recording a private, or even an intimate, conversation and then uploading that conversation online? In most circumstances, the law will provide the victims of such a gross breach of privacy with no redress.

It is this gap that recently led the Australian Association for Unmanned Systems, together with Liberty Victoria, to call for the modernisation and harmonisation of Australia’s privacy laws in a report titled “The Use of Drones in Australia: An Agenda for Reform”. The report proposes nine reforms directed at amendment of current surveillance devices laws consistently across the country to include a general prohibition on recording private activity using a surveillance device.

The report proposes that “private activity” would include any activity where it would be reasonable that those engaged in the activity expected to be observed or overhead only by themselves, but not include activity where a person ought reasonably to have expected to be observed or overheard. The paper also proposes that any definition of “surveillance device” be technology neutral, that is, the rules “should neither require nor assume a particular technology”. The reforms would apply broadly to current and future technologies, and would cover any device which could be used to monitor, observe, overhear, listen to or record an activity, or to determine or monitor the geographical location of a person or object.

These leading industry and civil liberties organisations also propose that privacy commissioners in each jurisdiction across Australia have power to conciliate breaches of privacy by individuals who control drones or otherwise publish private information obtained through prohibited surveillance. Such a mechanism would give Australians an avenue to translate their feeling of exposure and vulnerability into a meaningful mechanism to dissuade such incursions into privacy in the future.

Until intergovernmental reform is achieved, Australia’s privacy framework will remain unfit for the purpose of balancing the beneficial uses of new technologies against community expectations of privacy across Australia.

In the meantime, keep one eye on the sky.

Matthew Albert is a barrister, a member of Liberty Victoria’s Policy Committee, and co-author of the report “The Use of Drones in Australia: An Agenda for Reform”. He is also a member of the Right Now board.

Dale Straughen is a student at Melbourne Law School and a member of Young Liberty for Law Reform.

Feature image: Drone with Go Pro camera mounted underneath. By Don McCullough/Flickr