I am watching you.

I am watching you.1)Copyright by Don McCullough under the Creative Commons Attribution 2.0 Generic

If one of the gifts you have found underneath the Christmas tree was a drone 2)The term drone is used to describe any type of aircraft that is automated and operates without a pilot on board, commonly described as unmanned aerial vehicles (UAV). There are two types of drones: those which can autonomously follow pre-programmed flight routes and those which have remotely piloted aircrafts systems (RPAS). Only the latter are currently authorised for use in EU airspace., and it happens to have some camera installed on it, you should prepare yourself to embrace your new status of a data controller and face a new set of obligations regarding privacy and safety.

Indeed, whilst drones can be a lot of fun, there are serious considerations at stake which should not be ignored. In fact, the extensive range of their potential applications3)Despite drones were firstly used for military activities, they are increasingly used across the EU for civilian purposes. The civil use usually refers to those commercial, non-commercial and government non-military activities which are more effectively or safely performed by a machine, such as such as the monitoring of rail tracks, dams, dykes or power grids., the proliferation of UAVs with a camera, the collection of data and the subsequent use of such data, namely by private individuals for personal and recreational purposes raise concerns about the impact of these technologies on the safety, security, privacy and the protection of personal data.

As a matter of fact, a drone in itself does not imply the collecting and the processing of any personal data until you attach a camera to it. However, drones are increasingly equipped with high definition optical cameras and therefore are able to capture and record images of the public space. And while there are no apparent privacy concerns regarding the recording of landscapes, having a drone filming through the sky over your neighbourhood might lead to a very different conclusion. Drones have a high potential for collateral or direct intrusion regarding privacy, considering the height at which they operate, allowing to monitor a vast area and to capture large numbers of people or specific individuals. Despite individuals may not always be directly identifiable, their identification may still be possible through the context in which the image is captured or the footage is recorded.

It must be noted that people might not even be aware that they are being filmed or by whom and, as a result, cannot take any steps to avoid being captured if such activity is not made public. People ought not to know that the device is equipped with optical imaging and has recording capabilities. Moreover, because the amateur usage of a drone may not be visible, there is a high risk of being directed to covert and voyeuristic recording of their neighbours’ lives, homes and back gardens. How would you feel if a drone was constantly looming near your windows or in your backyard? Indeed, there is no guarantee regarding the legitimacy of the end to be achieved with the use of drones. None withstanding the fact that a drone may actually pose a threat to people’s personal safety, belongings and property, considering that it may fall, its increasing popularity as a hobby outlines the issue of discriminatory targeting, as certain individuals, such as children, young people and women, are particularly vulnerable to an insidious use of RPAS. This is particularly relevant considering that the images or footage is usually intended to be made publicly available, usually on platforms such as Youtube.

Furthermore, the recording may interfere with the privacy of individuals as their whereabouts, home or workplace addresses, doings and relationships are registered. In this context, the use of drones for hobbying purposes may have a chilling effect on the use of the public space, leading individuals to adjust their behaviour as they fear their activities are being monitored.

Thus considering, the use of this type of aerial technologies is covered by Article 7 and Article 8 of the EU Charter of Fundamental Rights which respectively establish the respect for private life and protection of personal data. Taking into account the abstract nature of the concept of privacy, the main difficulty will be to define when there is a violation at stake.

In addition, there are obviously data protection implications at stake where the drone is capturing personal data. EU data protection rules generally govern the collection, processing and retention of personal data. The EU Directive 95/46/CE and the proposed General Data Protection Regulation are applicable to the collection, processing and retention of personal data, except where personal data is collected in the course of a purely personal or household activity. Hence, the recreational use of drones is a ‘grey area’ and stands almost unregulated due to this household exemption.

Nevertheless, due to the risks at stake, both to privacy and to data protection, the extent to which the ‘household‘ exemption applies in the context of a personal and private use must be questioned.

In a recent ruling, the CJEU concluded that the partial monitoring of the public space carried out by CCTV is subjected to the EU Directive 95/46, even if the camera capturing the images is “directed outwards from the private setting of the person processing the data”. As already analysed here, the CJEU considered that the processing of personal data involved did not fall within the ‘household exemption’ to data protection laws because the camera was capable of identifying individuals walking on a public footpath.

As the RPAS operations may be quite similar to CCTV, but more intrusive, because they are mobile, cover a larger territory, collect a vaster amount of information, it is not a surprise that they may and should be subjected to the same legal obligations. Subsequent to this ruling, these technologies should be considered as potentially privacy-invasive. Consequently, private operators of drones in public spaces should be ready to comply with data protection rules.

Of course, the footage needs to contain images of natural persons that are clear enough to lead to identification. Moreover, and in my opinion, it is not workable to consider, in order for the household exemption to be applied, the images collateral and incidentally captured. Otherwise, selfies unwillingly or unknowingly including someone in the background could not be freely displayed on Facebook without complying with data protection rules. The footage must constitute a serious and systematic surveillance on individuals and their activities.

Therefore, information about the activities being undertaken and about the data processing (such as the identity of the data controller, the purposes of processing, the type of data, the duration of processing and the rights of data subjects), where it does not involve disproportionate efforts, shall be given to individuals (principle of transparency). Moreover, efforts should be made in order to minimize the amount of data obtained (data minimization). Moreover, the controller might need to ensure that the personal data collected by the drone camera is anonymised, is only used for the original purpose for which it was collected (purpose limitation), will be stored adequate and securely and will not be retained for longer than what is necessarily required.

In this context, individuals having their image captured and their activities recorded by the camera of a drone should be given guarantees regarding consent, proportionality and the exercise of their rights to access, correction and erasure.

Thus said, depending on where you are geographically located in the EU, there are obviously different rules regarding the legal aspects related to the use of drones. It is therefore important for individuals intending to operate a drone to get informed and educated about the appropriate use of these devices and the safety, privacy and data protection issues at stake in order to avoid unexpected liability.

References   [ + ]

1. Copyright by Don McCullough under the Creative Commons Attribution 2.0 Generic
2. The term drone is used to describe any type of aircraft that is automated and operates without a pilot on board, commonly described as unmanned aerial vehicles (UAV). There are two types of drones: those which can autonomously follow pre-programmed flight routes and those which have remotely piloted aircrafts systems (RPAS). Only the latter are currently authorised for use in EU airspace.
3. Despite drones were firstly used for military activities, they are increasingly used across the EU for civilian purposes. The civil use usually refers to those commercial, non-commercial and government non-military activities which are more effectively or safely performed by a machine, such as such as the monitoring of rail tracks, dams, dykes or power grids.