Drones and Privacy: Risks and Recommendations.

Drones Are Increasingly Used in the Civil Field. The civil use of drones is increasing, as also witnessed by the DRONITALY event that will be hosted near the Milan Expo in late September. And attorneys who are contributors to this blog find it certainly exciting when new technologies become widespread and thus present legal challenges!

When a new technology starts to become mainstream, the lack of adequate legal provisions is often deplored. In truth, the interpreter needs to take a deep breath and (i) identify the applicable laws, as well as (ii) understand the unique risks entailed by such novel technology, while comparing them with previous technologies. In the case of unmanned vehicle systems, commonly referred to as drones, it does not look like the applicable rules are lacking, but they are simply difficult to apply.

EU Data Protection Authorities Scratch Their Heads Together. The data protection authorities of the European Union, who work together within the “Article 29 Data Protection Working Party”, have recently tackled the issue of drones. The June 16, 2015 opinion by the “Article 29 Data Protection Working Party” (“Opinion”) is especially interesting because of its solid logic approach, which starts with a careful analysis of potential data protection risks linked to the increased use of drones, goes on to finding specific issues that are unique to drones, and ends with a number of recommendations to operators, manufacturers, regulators and law enforcement officials.

Unique Challenges to Personal Data. Drones are aerial vehicles that can be used for a host of activities (including – as pointed out by the Opinion – dull, dirty or dangerous operations, also known as “3D”). The Opinion is careful in pointing out that the use of drones per se is not problematic: it is the possibility to equip drones with recorders of audio and video data that poses challenges to privacy. Additionally, drones overcome obstacles such as walls or fences, and small drones may even enter buildings. Subjects whose data are recorded are often unaware of the processing of their data and, if they are or suspect that they might be, this may trigger a “chilling effect” on their conduct. In short, the principles of purpose limitation, data minimization and proportionality are at risk. Therefore, the Opinion strongly encourages a data protection impact assessment to check how, given the circumstances, the processing of data by a drone may impact the privacy of interested subjects. The assessment must start early on, and the rule of data protection by design must be respected by manufacturers and users. Such assessment must take into account:

  • The Applicability (or Inapplicability) of Exceptions. When personal data is processed by sensors installed on the drone, there is no doubt that data protection legislation applies. The exception for personal data processed in the course of a personal or household activity is never compatible with the sharing of such data on the internet. Law enforcement may also be found as a legal basis for processing, but it must be lawful, necessary and proportionate: indiscriminate surveillance is not acceptable.
  • Informed Consent. Freely given, specific and informed consent is difficult to achieve when it comes to drones. The Opinion suggests to try anything that may work (they, more elegantly, talk about a “multi-channel approach”): from signposts to symbols, signals, lights, registration marks or the publication on the internet of information on drone activities, so that a specific drone can not only be detected by interested subjects, but also linked to a certain data controller. Other grounds for lawful data processing may be found depending on the circumstances, such as performance of a contract to which the data subject is a party (e.g., security services offered through drones only recording the data subject’s property), processing to protect the vital interests of the data subject (e.g., rescue of victims of accidents) or for the purposes of a legitimate interest (e.g., wildlife research).
  • Security Measures. Personal data gathered must be safely stored and communicated (encryption is encouraged).
  • Anonymization or Deletion of Data. Data must not be kept for a period that goes beyond what is necessary to fulfill the purpose of the processing. Data must be accessed only on a limited basis and anonymized or deleted as soon as possible.

Many of the legal issues connected with drones are similar to those arising in case of video surveillance, already tackled by the Italian Data Protection Authority in 2010, with the notable exception that providing information to data subjects may prove to be much more challenging in case of aerial vehicles that fly at a distance.

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