Cho, George --- "Unmanned Aerial Vehicles: Emerging Policy and Regulatory Issues" [2013] JlLawInfoSci 10; (2013) 22(2) Journal of Law, Information and Science 201

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Unmanned aerial vehicles (UAVs) provide a new and exciting platform for remote sensing and other applications. However, the added technological capabilities have produced policy and regulatory challenges. There is a need to understand the technology and infrastructure in the context of national and international laws. This contribution is an attempt to develop an understanding of the use of UAVs and their policy and regulatory implications. The deployment of UAVs might be more restricted and restrictive than at first envisaged. Such considerations as the sharing of domestic airspace, air navigation rules, public safety and national security are pertinent. There is a pressing need to address legal obligations and responsibilities and related issues such as privacy rather than just be concerned with the technology. Particular restrictions such as the export of the technology, the transmission of geospatial data across borders and international agreements are as important.

Keywords: aviation safety; drones; legal challenges; pilotless aerial vehicles; privacy; unmanned aerial systems (UAS); unmanned aerial vehicles (UAV)

Introduction

Unmanned aerial vehicles (UAVs) are a new and exciting technology. The civilian uses of UAVs are many and varied including environmental monitoring of fishing trawlers or whalers, crime fighting and traffic control, checking of electricity cables and pipelines, surveying forests and crops, and fire fighting purposes. However, in these applications the issues of safety, privacy and ethics often become topics of debate even before the technology is deployed. While regulations might limit the use of UAV for commercial and civic purposes from a safety point of view, there have been limited discussions about the privacy implications of its use. UAVs are part of the continuing developments in photogrammetry from the early air photographs captured by aircraft through to the use of satellites. UAVs continue the pilotless tradition albeit with ground controllers aided by computer algorithms. Fully autonomous UAVs may be some way off but may eventually be developed.

This contribution suggests a need to develop a deeper understanding of the policy and regulatory environment in the use of unmanned aerial vehicles. The technology for UAVs appears enticingly cheaper together with greater control as to when and where to deploy the platform to obtain better quality fine-grained data. But the use of UAVs might be more restricted and restrictive than first envisaged, as there are other considerations, such as, the sharing of domestic airspace within air navigation regulations, public safety and national security.

This contribution aims to give a broad picture of the policy and regulatory environment for the deployment and operation of UAVs. UAVs fill a unique niche in remote sensing. The technology is a supplement to and not a replacement of traditional remote sensing data gathering methods. The integration of the use of both civilian and military UAVs in segregated airspaces suggests the need for the development of some form of a shared ‘open’ skies policy. Users of such systems require certainty with the rules and regulations of operating in this airspace. Among the legal issues posed by the deployment of UAVs, privacy is identified as a lead issue that deserves further exploration. Comparisons are made as to how this issue is being addressed in the United Kingdom (UK), European Union (EU), United States (US) and Australia. A discussion of the various issues of intellectual property rights of the captured images, the transmission and cross-border flow of geospatial data captured by UAVs and data protection is not addressed in this paper as these merit separate treatment. While it is conceded that there is an overlap between data protection and privacy, a detailed treatment could arguably be the topic of a separate discussion and article.

The first part of this paper provides a background to UAVs as a platform beginning with the myriad nomenclature to describe such vehicles. While the descriptions have largely been based on its mass, increasingly there is a distinction which is made in terms of its usage, whether military or civilian, and whether for scientific research or for commercial purposes. The second part addresses the policy and regulatory environment for UAVs; first in terms of safety and regulation in domestic airspace, then in terms of privacy issues followed by technical and operational issues and finally with export controls of UAV technology. An extended analysis of the developments in the law relating to privacy in the US and Australia with special reference to UAV deployment is merited on the grounds of topicality and the challenges it poses to law makers. Some technical and operational considerations are also discussed in relation to restrictions on the export of the technology under the Wassenaar Arrangement and the Missile Technology Control Regime (MTCR) as well as the cross-border transmission of geospatial data under various international agreements.^[1] Some preliminary conclusions are made to help draw the threads together to suggest that the ‘mosaic’ of complexities are interwoven. Pilotless aerial vehicles or remotely piloted vehicles (RPV) are new, unique and different and therefore require distinctive solutions to the problems and challenges of this new industry.

1.1 Classification by types and characteristics of UAV

Unmanned aircraft systems (UASs) consist of the vehicle, payloads and ground control stations. The sophistication of such systems depends largely on their purpose and use. The platform for civilian uses may be characterised by its size, flight endurance and other airborne capabilities.^[2] A generally accepted civilian classification, adapted from existing military descriptions of the platforms, suggest six types of such vehicles: Micro (MAVs) or Nano (NAVs) Aerial Vehicles; Vertical Take-off and Landing (VTOL); Low Altitude, Short-Endurance (LASE), also as Small Unmanned Aircraft Systems (sUAS); Low Altitude, Long-Endurance (LALE); Medium Altitude, Long-Endurance (MALE); and High Altitude, Long-Endurance (HALE). A cursory survey of the remote sensing literature demonstrates that often the data, the platforms (including sensors and other equipment), are taken as a given and arguably uncontroversial. Indeed the discussion of these platforms are often footnoted rather than explored at length because the main purpose is the analysis, manipulation and reporting of the results and findings from the data. Such would be the case where UAVs have become ubiquitous. However, at the present stage of development, UASs may be described as nascent.

Pilotless aerial vehicles (PAVs) and RPVs have acquired various names including ‘drones’, ‘unmanned or unpiloted aerial vehicle’, ‘pilotless aircraft’, ‘uninhabited aircraft’, and mini-satellite or small satellite. For present purposes the terms unpiloted aerial vehicles, drone and UAV may be used interchangeably to refer to the platform. Specific reference may be made to distinguish different categories of UAVs according to characteristics such as size, shape, form, speed, mass and other attributes. More generally the term unmanned aircraft systems (UASs) has been used to refer to all the components that make up this platform of which the vehicle is but one item.

Drones are unmanned but are ‘piloted’. Ground support from a distance assists in navigation and general flight. Technically drones are not supposed to be reused; the idea derived from its deployment during the first and second World War as flying bombs. In the modern era the recycling of UAVs have become commonplace as these vehicles are designed to return to base unless they have been intercepted, damaged or destroyed in some way. Drones have been so named because they have no ‘mind’ of their own — a robot with little independent decision-making capabilities. Modern UAVs are more sophisticated with the ability to optimise flight paths, control speed, multi-task, and carry various navigation, surveillance equipment and weapons. Some of these types have developed to become unmanned combat aerial vehicles (UCAVs). At the present stage of their development, these ‘attack’ drones have neither the independence to identify targets nor the capability to launch weapons. The identification of targets and decision to launch an attack is left to human operators some distance away. It has been estimated that 19 staff are required to support each vehicle’s mission.^[3]

Reusable aircraft operated by humans from a distance have been in existence from as early as the First World War. In the US, developers built and tested the first robotic attack plane — the Curtiss-Sperry Flying Bomb in 1917-1918 for example. Pilotless missiles were also a feature of the V1 Flying bombs or doodlebugs of the Second World War.^[4] The miniaturisation of electronics, in-built light-weight digital cameras and other sensors provide additional functions. These UAVs integrate global navigation satellite systems (GNSS) with inertial navigation and other surveying equipment. With the coming of age of autonomous vehicles, predictions have been made of the growing market for photogrammetric images of the natural environment, the inspection of tall structures, general surveillance and border security. The estimate for the global military drone market alone is close to US$5.9 billion in 2012.^[5] However, the question is whether the predicted developments can take place in the civilian market without the requisite policy, regulatory and industry support mechanisms in place. There is a need to explore these possibilities.

While high levels of skill and inventiveness may be required in supporting UASs, there have been policy and regulatory restrictions to the more rapid development and evolution of the unmanned aerial vehicle industry. In a later part of this paper, an examination is made of what these are and how these may act as barriers that impede UAS development. As a general observation it is postulated that much of the operational standards and legislative requirements are unarticulated, remain fuzzy in concept and implementation, and have no comparative international benchmarks. This hypothesis is explored in a later section below.

In terms of common use nomenclature, a comparison of the different types of UAVs are summarised in Table 1 below. The terminology may already have introduced some confusion. For present purposes, the simpler reference to micro- and mini-UAVs is preferred. The reason is that when the so-called military drone or the remote pilotless aerial system (RPAS) is included, the order of magnitude assumes exponential proportions. Military drones tend to be much bigger in size, have an enlarged scale of operations, carry heavier payloads, and travel at higher speeds.

Table 1 suggests the diversity and differences in the nomenclature in the rudimentary classification system for UAVs. The first observation from the table is the reference to the term satellites, small aircraft and light UAVs. The references are further distinguished as to whether these are micro- or mini-satellites. Generally, the distinction is that of mass of the vehicle and its deployment. Micro- and mini-satellites are the smallest of the vehicles and generally fly below 300 m. Designs have focused on creating UAVs that can operate in urban canyons or inside buildings, flying along hallways, carrying listening and recording devices, transmitters or miniature video cameras. If nothing else, the diminutive size provides vast opportunities and applications in the civilian sphere. The US Defense Advanced Research Projects Agency (DARPA) criteria for micro-UAVs include a size of less than 15 cm, a mass of 100 g or less, a payload of 100 g, a range of 1-10 km, endurance of 60 mins at an altitude of less than 150 m flying at 15 m/s.^[6]

A second observation is that local and national regulations govern use and operations where the mass of the vehicle is less than 150 kg. In the UK, US, and Australia these types of vehicles are considered ‘model aircraft’ for want of a better descriptive term. This apparent lack of precision in the definition is because the requirement for certification or otherwise depends on the level of autonomy of operating the UAV and the purposes for which the UAV is flown.

Thirdly, the table also depicts information on tactical UAVs that include special task UAVs and strategic UAVs. Tactical UAVs are heavier platforms of up to 1,500 kg with six sub-categories depending on the range, altitude and endurance. For example, one sub-class is that of decoy UAVs that weigh up to 250 kg used for special military operations. In general, there is a lack of satellite communication systems because weight and payload restrictions place limits on the distance and range these vehicles may operate. An example is the MALE UAV known as the MQ-1B Predator. The MQ-1B Predator has sensors in its bulbous nose cone, on-board colour and black and white video cameras, image intensifiers, radar, infrared imagery for low light conditions, lasers for targeting and laser-guided missiles. With a cruise speed of between 135–217 kph, a payload of 204 kg and two Hellfire missiles the cost of maintaining such a system, inclusive of four aircraft, a ground control station with a satellite link, has been estimated at USD$20 m.^[7]

Strategic UAVs, on the other hand, operate at higher altitudes and have heavier platforms with longer range and endurance. HALE vehicles can weigh between 2500–12 500 kg with a maximum flight altitude of about 20 000 m. These UAVs are highly automated with constant ground control station monitoring. The famed Northrop Grumman UAV Global Hawk boasts an endurance of 35 hours. There are also non-military HALE, such as the solar powered Helios developed by Aerovironment and operated by NASA, for Earth Observation (EO) missions.

One often-overlooked class of UAV is the vertical take-off and landing (VTOL) vehicle. These rotary wing vehicles have a range of weights and configurations. VTOL vehicles are capable of hovering over specific sites and can fly at low altitudes. Civilian and commercial applications include surveillance and reconnaissance.

In general, the smallest class of UAV is more often used for civilian applications while larger strategic UAVs are mostly used in military missions. Cost is a major consideration. For example, the MQ-1B Predator’s operational parameters may rule out its deployment for civilian use given that other less costly means may be available. In addition, the suggested classification scheme depicted in Table 1 uses mass as a surrogate measure to rank these vehicles in order of size. It has been suggested that both in theory and practice, a more accurate classification schema is to calculate the kinetic energy impact levels of the UAV. The index for any aircraft may be easily computed and can be used as a criterion to classify such aerial vehicles. Impact kinetic energy is the ability of an aerial vehicle to cause damage and injury. It provides both an absolute measure and a relative standard for identifying ‘equivalence’ with model aircraft. It is an all-encompassing criterion applicable to all aircraft type, is easy to determine and can be readily estimated during the design process.^[8]

Weight classification group	Civilian category	Wet mass (incl. fuel) kg	Regulations	Broad Military Equivalent	Notes and Systems
1	Molecular/femto satellites molesat	0.001 – 0.1	?	?	Launched to fly in an asterism pattern, known collectively as a constellation
1	Pico satellites picosat	0.1 – 1.0	?	?	Fly in formation as a swarm from mother satellite Black Widow MicroStar
1	Nano satellites nanosat	1 - 10	?	?	?
1	Small aircraft	0 - 20	National CAA	Micro (<20 kg) Mini (<30 kg)	?
2	Light UAV	>20 - <150	Civil	Tactical UAV Close range	Phantom, Mikado
2	Micro – small satellites	>10 - <100	Civil	Tactical UAV Short range (<200 kg)	Luna, Silver Fox, Firebird, Photo, Goldeneye
3	UAV	>150	EASA	Tactical UAV
3	Mini – small satellites	>150 - <500	?	Short range (<200 kg) Medium range (150-500 kg)	Hunter, Aerostar, Sniper, Falco
3?	Special Task UAV	250 250	Military	Lethal Decoys	MALI, Harpy, Lark, Marula Flyrt, MALD, Nulka, ITALD
4?	Tactical UAV	500 – 1,500	Military	Endurance range	Aerosonde, Vulture II Exp
4?	Tactical UAV	1,000 – 1,500	Military	Medium altitude long endurance MALE	Skyforce, Hermes 1500, Heron TP
4?	Strategic UAV	2,500 – 12,500	Military	High altitude long endurance HALE	Global Hawk, Raptor, Condor, Theseus

Notes: ‘?’ = unknown or indeterminate; CAA Civil Aviation Authority (UK), EASA European Aviation Safety Agency (EU).

1.2 The use of space

1.2.1 Outer Space

A number of transnational conventions, agreements and treaties govern the international and cooperative use of outer space and deployment of large satellites. These agreements govern the management and operation of EO vehicles. EO refers specifically to the active monitoring of the Earth from an orbit in space using satellites. This reference excludes aerial photography or EO performed by other instruments carried on-board aircraft. The satellites are deployed on missions such as mapping, environmental monitoring, and climate and weather observations.^[9] The last half of the 20^th century has been accompanied in the so-called space age by developments in international law and cooperation. Five multilateral treaties and five resolutions and declarations sponsored by the United Nations (UN), and, more specifically, the UN Committee on the Peaceful Uses of Outer Space (COPUOS) is evidence of this cooperation. The treaties deal with the exploration and use of outer space, the rescue of astronauts, and damage and activities in outer space. The declarations, on the other hand, address legal principles of these activities, including principles governing broadcasting from space, remote sensing, nuclear power sources and international cooperation in the exploration and use of outer space. It seems that no other dimension of human activity, with the exception of the use of the frozen Arctic and Antarctic regions, has been so well shadowed by international cooperation and legal development as those relating to the use, occupation and travel through space.^[10]

1.2.2 Troposphere

Closer to Earth, however, the practical and useable airspace is the troposphere beginning at the surface of the Earth and extending upwards between 9 km at the poles and 17 km at the equator. Any airspace is that portion of the atmosphere controlled by a country above its territory, including its territorial waters and generally, any specific three-dimensional portion of the atmosphere. To systematise the use of such airspace the International Civil Aviation Organization (ICAO) has classified the world’s navigable airspace into three-dimensional segments, each of a specific class. Generally, the classes are controlled and uncontrolled airspace; and whether or not there is a need for air traffic control (ATC) oversight based on air navigation flight rules — visual, instrument and special. Most nations adhere to the classification specified although they might use only some of the classes and significantly alter the exact rules and requirements for their own national purposes. In addition, individual nations may also designate Special Use Airspace with further rules because of national security or safety.

By convention, international law prescribes a country’s sovereign airspace as being 12 nautical miles (22.2 km) into space from a nation’s territory. Airspace not within any country’s territorial limit is considered international, analogous to the ‘high seas’ in maritime law. However, by international agreement, a country may assume responsibility for controlling parts of international airspace, such as those presently exercised over the oceans. For instance, the US provides air traffic control services over a large part of the Pacific Ocean, even though this is international airspace.

Given the diversity of uses and developments in the UAV market in different jurisdictions, the international legal environment may be fragmentary and the extant international rules and principles may be ill-defined and subject to interpretation. Regulations appear to be confined to particular jurisdictions, to certain forms of activities, and to certain natural or legal persons. An examination of the regulatory principles and current legal frameworks may therefore be necessary for a better understanding of the environment that UAVs operate within.

2 Policy and Regulatory Environment for UAVs

The European Defence Agency has observed that there will be a need for public awareness of the benefits of UAVs concomitant with a political understanding of the potential use of such technology because of the significant economic, technological and industrial impacts.^[11]

International rules and conventions for civil aviation are relevant to the present discussion. The Chicago Convention of 1944 specifically mentions the notion of a pilotless aircraft (Art 8). Article 3 stipulates that the Convention is applicable only to civil aircraft but not to state aircraft. State aircraft include UAVs in military, border protection and police services. Such aircraft require authorisation by special agreement before they can fly over the territory of another state. Article 8 further stipulates special authorisation by the state over-flown by an unmanned aerial vehicle.^[12]

The beneficent uses of UAVs include the provision of rescue services in crises and disasters. The so-called ‘disaster’ drones that work as teams to help in a crisis may be exemplified by the Orchid Project. During the earthquake in Haiti in 2010, it was suggested that the key to successful rescue operations was the coordination between humans and ‘intelligent machines’.^[13] In emergencies, first responders on the ground may have difficulty in making decisions of a localised nature that could have global impacts. It is likely that autonomous flying vehicles could help improve situational awareness. The study suggested that this extra assistance could have led to intelligent and a more strategic allocation of tasks and resources and a better outcome for those involved in the natural disaster.

2.1 Safety and regulation in domestic airspace

Safety considerations have been uppermost in the minds of aviation authorities when deciding whether to permit UAV access to domestic airspace. In the European context, the scope and definition of how the UAV might operate in that space may require a seamless and harmonised regulatory framework on top of a civilian regulatory support infrastructure to ensure compliance. The UAV would have to operate within the European Air Traffic Management System (ATMS) if the goal of a Single European Sky (SES) is to be realised. However, the present regulatory approach within the European Union (EU) is fragmentary and there might be a need for some political guidance and a shared EU vision.

A European Commission UAS Panel identified the present segregated airspace among member states as a hindrance. The Panel had observed that synergies exist beyond and across traditional civilian, military and government structures. Such an ideal would enable the development of European technologies and standards to support market and regulatory requirements and promote a common harmonised European and subsequently an international regulatory framework for these vehicles.^[14]

In the US and Australia, the limiting factor in the use of UAVs in domestic skies is that of ‘permissions’ — from the Federal Aviation Authority (FAA) and Civil Aviation and Safety Authority (CASA) respectively. Such permissions are necessary to ensure safety and to react in the unforeseen event of a technical failure of an unmanned aerial vehicle. In the EU, the European Aviation Safety Agency (EASA) performs similar functions. However, aviation authorities remain anxious about the general introduction of UAVs into national airspace because of operational, technical and safety considerations.

One major safety concern of operating UAVs is the level of ‘autonomy’ that might technologically be feasible. The lack of a ‘detect and avoid’ system on board UAVs is considered a major obstacle to the use of UAVs in civil aviation. A consortium of companies led by BAE Systems in the UK has obtained research funding to demonstrate that civilian UAV may safely share the skies with other users. The key technology that is currently missing is the ‘detect and avoid’ system for civilian drones. Such a system may be designed to automatically steer the pilotless aircraft away from other aircraft and to crash land in a safe area if necessary.^[15] The safety of autonomous UAV flight necessarily becomes a legal question in terms of the degree of flight control UAV computers are be permitted to have and where legal liability might reside.^[16]

While European manufacturers of UAVs have made significant progress in critical technologies and systems integration, the industry is still in its infancy. It is probable that there is a need for significant investments and incentives to support the development of a truly European UAV market and to become globally competitive. The opportunities for R&D for European UAV manufacturers are believed to probably lie in the aerospace, defence and security sectors together with the implementation of ‘break-through’ innovative technologies. Arguably, these may be beyond reach without the necessary regulatory support infrastructure for the EU as a whole.^[17]

A further policy issue everywhere is the ban on the commercial use of UAVs as cargo carriers because of safety concerns. The regulatory challenge for operating UAVs has always been the need to demonstrate an equivalent level of safety compared to human piloted aircraft. Furthermore, UAVs need to be operated in compliance with existing aviation legislation. The paramount consideration is how to accommodate UAVs and at the same time ensure that these vehicles are safely separated from other users of the airspace.

The International Civil Aviation Organisation (ICAO) issued a Circular on Unmanned Aircraft Systems (UAS) in 2011 to apprise states of the emerging ICAO perspective on the integration of UAS into non-segregated airspace and at aerodromes. The circular also asked states to consider the fundamental differences from manned aviation the integration would involve and sought to encourage states to help with the development of ICAO policy on UAS by providing information on their own experiences associated with these aircraft.^[18]

ICAO has also required member nations to develop a State Safety Program. On 8 February 2011, Australia published its State Aviation Safety Program. This document sets out the management of aviation safety in Australia, with a focus on safety systems. It provides a framework for the continuous improvement of aviation safety by clearly establishing how the various elements of Australia’s safety system work together. The four key components of the program include: policy and objectives, risk management, safety assurance, and safety promotion. At the core of the program is the requirement for safety management systems in the aviation industry so as to deliver a better safety culture and continuing improvements in safety.^[19]

2.1.1 European Union

The EU Parliament has been debating how best to ensure a regulatory framework that enables the wider use of UAVs by civilians. Any discussion of the regulation of civilian UAVs in Europe cannot avoid referring to the seminal report of a taskforce set up by the European Joint Aviation Authorities (JAA) and the European Organisation for Safety of Air Navigation (Eurocontrol) in 2002. The influential taskforce report outlined the requirements for the development of a ‘concept’ for regulating civilian UAV in Europe.^[20] ‘Concept’ here refers to the set of principles and guidelines for the development of such regulations but not the regulations themselves. The document identified five ‘pillars’ including safety, security, airworthiness, operational approvals, maintenance and licensing. This taskforce did not address military UAVs. The report has been under consideration by the ICAO and EASA.

A key finding of the eight-part taskforce report is that the non-existence of regulations is a major obstacle to future development in European UAVs. The report identified three categories that have promising market entry for civilian applications. The applications include technology-, platform- and service-induced applications. Technology-induced categories are the enabling equipment on the UAVs for visual inspection, permissible payloads and miniaturisation of functional equipment. Platform-induced applications on UAVs encompass dedicated infrastructure monitoring of pipelines and power lines whereas service-induced applications include activities of high altitude geostationary UAV satellites with extended capabilities. The major impediments to a flourishing UAV industry in Europe revolves around the lack of access to airspace, difficulties of obtaining liability insurance, uncertainty of secure and stable radio frequencies and the availability of cheaper manned aircraft options.

Aviation has always been highly regulated from the beginning given that the UAVs could become powerful weapons of war and could easily violate the sovereignty of states. Safety is perceived to be a shared responsibility among the authorities, the operators, manufacturers and aircraft crew. Similarly, in this context the international regulatory environment for UAVs consists of general aviation conventions on safe aviation, unlawful acts, over-flights of aircraft and sovereignty, airworthiness, registration and nationality marks.

The taskforce report promoted the regulation of civil certification and operation of all types and categories of UAVs within the jurisdiction of the EASA. The exceptions were those that pertained to missiles, military and experimental vehicles. An interesting feature is that light UAVs, those with a mass of less than 150 kg, were exempt from regulation by the EASA. The report recommended that national aviation authorities regulate this class of light UAV, similar to those regulations covering model aircraft. The reason was that such activity required minimal airworthiness standards. The regulations emphasise safety considerations, such as when and where to fly.

Extensive technical reports are contained in 21 topics that range from the legal framework for the vehicle’s airworthiness certification through to emergency recovery, communication links and human-machine interface and security. Annex 1 of the report is instructive as it observed that the ‘routine operations of Civil UAV Systems are likely to be severely restricted in the short-term until a number of significant technical problems have been resolved (eg the provision of an adequate “Sense and Avoid” capability.’^[21]

2.1.2 United Kingdom

In May 2002, the UK policy for UAVs was published as CAP722 for the certification and operation of both civilian and military UAVs. The principles governing this policy includes the need for the system to be certificated to a code of airworthiness together with certification of organisations involved in the design, manufacture, maintenance or operation of civilian UAVs.^[22] In concert with EASA requirements, the regulations apply to UASs lighter than 150 kg. The regulations vest airworthiness and operations responsibilities with the national aviation authority CAA. The UK Light UAV Systems Policy ensures safety standards. Exemptions to UK national regulations may be granted to civilian operators who can demonstrate compliance with the policy and show equivalence in terms of safety risk to existing model aircraft. JAA/Eurocontrol has accepted the policy as a basis for the regulation of light UAS within the EU.^[23]

In the UK the regulation of UAVs is based on model aircraft regulation templates. There is however one exception. Whereas model aircraft enthusiasts have an organised presence, there is no similar association for UAVs. A model aircraft association is the accredited body that assesses technical standards, makes recommendations to the CAA and develops codes of practice.^[24] In the UK the CAA has accredited the Large Model Association (LMA) to provide accreditation to operators and builders as the organisation that has expertise in the field. LMA oversight includes an assessment of the suitability and integrity of the design and construction, functional flight trials and reliability trials as well as operational control of UAVs. Following an assessment, the LMA then makes recommendations to the CAA for further action. However, the LMA has adopted a policy that it is there for the benefit of recreational model aircraft enthusiasts and as such will not support commercial UASs. The equivalent Australian CASA-approved association is the Model Aeronautical Association of Australia (MAAA), which performs a similar assessment role.^[25]

The CAA eligibility criteria for any UAS for commercial operations include vehicular and operational requirements. Before a UAS is eligible for commercial operation certification, the UAV should have a maximum impact kinetic energy not exceeding 95 KJ^[26] a maximum take-off mass below 150 kg and a maximum sustained speed in level flight slower than 70 kts (130 kph). The line-of-sight operation is not to exceed 500 m from the unmanned aerial vehicle pilot and at a height not exceeding 122 m (400 ft) above ground level. UAVs under 7 kg mass fall within the Small Aircraft definition of the Air Navigation Orders and are thus exempt from the regulatory provisions.^[27]

2.1.3 United States

In the US, UAVs have a military heritage and there has been a long history of a fascination with this technology. The Academy of Model Aeronautics (AMAe), established by model aviation enthusiasts in 1936, has played an important role in setting up voluntary standards for the operation of model aircraft. The standards require flying model aircraft below 400 feet (122 m), flying model aircraft away from populated areas and segregated from larger aircraft. Different use and purpose distinguish model aircraft from UAVs. The FAA has used three categories based on mass to classify such vehicles — cruise missile, model aircraft, and unmanned spacecraft.

Under USC §40103(a)(1) (Sovereignty and use of airspace) the federal government has exclusive sovereignty and use over domestic airspace. The FAA is tasked with developing ‘plans and policies’ for US airspace under 49 USC §40103(b)(1). As a result, there is a significant limitation on the legal competency of state and local governments from promulgating laws, regulations or ordinances affecting access to the national airspace. There is, however, uncertainty as to whether state and local governments have powers to restrict or regulate the use of UAVs, including limitations on noise levels generated by these craft over any state.

While UAVs feature prominently in ‘Vision 100’ arising from the Century of Aviation Reauthorization Act,^[28] progress towards attaining the goal has been slow. In 2007, the FAA declared that there were to be no UAVs in the National Airspace System (NAS) without specific authority. The present approval is in the form of a Certificate of Waiver or Authorization (COA) that regulates small-unmanned aircraft.

The FAA Modernization and Reform Act of 2012^[29] Congress has tasked the Federal Aviation Administration (FAA) with integrating UAVs into the NAS by September 2015. While safety is a predominant concern, there is however, a failure to address significant and largely unanswered legal questions. The FMRA includes the development of an integration plan for UAVs, test sites for UAVs, a simplified process for issuing authorisations, the development of operational and certification requirements, and exemptions for craft weighing 55 pounds (25 kg) or less flown within visual-line-of-sight that are strictly for hobby or recreational purposes. Under this law the US Secretary of Transport and the FAA will draft plans, standards and rules to ensure that UAVs are integrated into national airspace in a safe and legal manner by 2015. The ultimate goal is to enable unmanned aerial vehicle operators to ‘file and fly’ their vehicles with minimal operational restrictions.

Other ‘domestic’ integration issues include safety concerns, sensing and avoiding other air traffic, mitigating risks to persons and property on the ground, operator training and qualifications and addressing potential security risks. An exposure to legal liability presents greater challenges to people and property in equal measure with operator training and certification. While voluntary industry codes of conduct for vehicle operations may be a means to alleviate such anxieties, legal liability predicated on loss, injury and damage may have to be developed similar to those protections accorded in civil and common law provisions for motor vehicles.^[30] The potential border security and homeland protection risks posed by UAV, on the other hand, are far greater. These risks may have part-civilian and part-military considerations. Attaching weapons to UAVs, unauthorised entry into control systems (hacking) and signal jamming of radio frequencies, the availability of radio frequency spectrum, responsibility for border and national security issues and airspace restrictions may all require separate and specific regulations.^[31]

2.1.4 Australia

In Australia, the regulations governing UASs, first drafted in 2001 in anticipation of civil operations, are the Civil Aviation Safety Regulations (CASR) Part 101. Being the first jurisdiction to attempt a regulation of UASs, there was little operational experience to draw upon and consequently there were limited detail relating to pilot qualifications, risk management, airworthiness operational approval processes and legal liability risks. The regulations provide a basis for CASA oversight but with minimal guidance to industry.

Each application for any UAS mission in Australia is considered on a case-by-case basis by CASA, and requires significant briefings by applicants. This process may have the perverse effect of introducing inconsistent responses to specific issues. The growth in UAS activities and demand for CASA approvals for a range of operations from humanitarian, law enforcement, security and commercial activities puts further pressure on CASA and increases the possibility of inconsistent decisions.

The revised CASR Part 101 now consolidates rules governing all unmanned aeronautical flights into one regulation. The revisions prescribe the rules for the use of unmanned moored balloons and kites, unmanned free balloons, unmanned rockets, UAVs, model aircraft, and pyrotechnic displays. The regulations classify UAVs as either micro-, small or large with separate rules applicable to each category. Micro-UAVs are exempt from regulation. An ‘unqualified’ person, that is, a person without a private pilot’s licence for instance, may fly micro- or small UAV. Large UAVs, on the other hand, are considered to be a de-facto piloted aircraft and must generally be certified and registered and its controllers appropriately trained and qualified.^[32] The legal responsibilities for pilots and manufacturers of large UAVs are similar. However, whether the legal liability, arising from an unmanned aerial vehicle collision, is assessed as either strict or absolute liability, is probably too premature a question to contemplate. It is arguable that domestic tort law may point towards strict liability for unmanned aerial vehicle pilots and manufacturers similar to those for commercial aviation.

As noted, the regulations for model aircraft in the past are determined on a case-by-case basis and subject to certain operating constraints. Some model aircraft have operated commercially by performing aerial tasks — effectively operating as UAVs. However, with the increased number and deployment of sophisticated UAVs, this determination on a case-by-case basis may become inefficient and impractical.

In summary, the challenges for an international regulatory regime are three-fold. First, that civilian UAVs operating anywhere should demonstrate an equivalent scale and level of safety to any aircraft operation, including size of the craft, duration, altitude, noise, spatial reach and geographical area of operations. Second, that civilian UAVs must operate in compliance with air navigation rules and regulations of a jurisdiction. Third, that UAVs are operated and integrated transparently with other civilian and military airspace users.^[33] The development of national regulations must proceed in tandem. Here some kind of harmonisation of international standards and regulations between say, FAA, EASA, CAA and CASA could be developed. Having met operational and certification standards in any jurisdiction, the unmanned aerial vehicle industry might be able to develop for any market.

2.2 Privacy

One notable problem with the development of a policy framework for UAVs is how to adequately address the potentially intrusive nature of UAVs in civilian environments. There is opposition from privacy advocates who see the potential use of UAVs in covert surveillance operations as leading to the erosion of privacy. Campaigners against the use of UAVs equate surveillance with intrusiveness and ultimately the loss of privacy. For many governments and citizens, privacy is a serious social and policy issue that will require deeper analysis and more debate before the use of UAVs in the skies becomes commonplace. However, the shape and response of such policy concerns need to be examined in the light of the legal framework.

Ryan Calo suggested that while there is a perception that the widespread use of UAVs for surveillance may erode the privacy of citizens, the opposite might happen. UAVs could be the ‘visceral jolt’ that society needs to drag privacy law into the 21^st century and help re-conceptualise the mental model of privacy violations.^[34] The ‘erosion’ of privacy has always been at the forefront of thinking when UAV technology is deployed. In the US neither the Constitution nor the common law, overtly prohibit the police, media or anyone else from operating surveillance UAVs. The more general question is whether in law citizens have a reasonable expectation of privacy in a public place? This fundamental question is first addressed generally, and then more particularly in the specific context of developments in US jurisprudence.

2.2.1 UAVs and privacy in general

The FAA, as custodian of air safety navigation, has thus far prohibited the use of UAVs for commercial purposes. However, the FAA is conscious of the need to examine privacy implications when proposals for opening up the skies to UAV for commercial purposes become operational under the FMRA by 2015. The American Council of Civil Liberties (ACLU) has opined that the use of UAVs raise very serious privacy issues and are pushing America ‘willy-nilly toward an era of aerial surveillance without any steps to protect the traditional privacy that Americans have always enjoyed and expected’.^[35] The ACLU further claims that privacy laws are not sufficiently robust to ensure that the new technology is used responsibly and consistently with democratic values.

While UAVs increase the potential for surveillance of political protests and private activities there is equally the potential for misuse of the technology. In order to enhance the protection of the privacy of communities, clear and accountable procedures will be needed.^[36] The Australian Council of Civil Liberties has called on the Australian government to urgently deal with the privacy issues associated with UAVs. Regulations governing civilian UAVs have seemingly not kept pace with the rapid growth of the industry in Australia and overseas.^[37]

UAVs are far stealthier and more sophisticated than other means of surveillance and can accomplish this task with a much greater range than say, helicopters. With proper equipment, UAVs can intercept communications, peer through windows and, in the not too distant future, they will possess facial recognition technology. The potential for violations of civil liberties is indeed significant.

Earth Observation satellite cameras and sensors capture everything in their wake as they circle the globe. Advertent or otherwise, all activities on the ground are captured on a regular and cyclical basis. When analysed and combined with other spatial and thematic data, the images and information assume new dimensions. It may also be possible to deploy instruments and cameras with facial recognition capabilities. In these instances, the thought in many people’s minds is the loss of ‘privacy’ and the intrusiveness of the technology. Whereas in the past, intrusion required physically traversing social and property boundaries, the advent of aerial surveillance technology obviates such needs.

The US Air Force (USAF) policy permits the ‘incidental’ capture of domestic imagery by UAVs. However, the policy would not ordinarily allow the targeted surveillance of a US citizen unless explicitly approved by the Secretary of Defence consistent with US law and regulations. Valid criteria for capturing domestic imagery by the USAF includes surveillance of natural disasters, environmental studies, systems testing and training and counter-intelligence and security relating to vulnerable assets.^[38]

In Europe, satellite images and aerial photographs have been used to monitor farming activity. This is to ensure that the Common Agriculture Policy (CAP) rules are followed. The use of this technology is not only cost effective, but also speedy and lifts the burden from farmers. In 2010, nearly 70 per cent of the total required controls on farm payments in Europe were accomplished by using satellite technology. While fallible, the potential use of UAVs is evident even in those countries where rugged geography hampers easy satellite monitoring. However, the lobby group Statewatch alleges that the EU is rushing to use UAVs without sufficient public discussion.^[39]

On the other hand, the use of UAVs can be highly restrictive where issues of privacy are concerned. For example, in the US ‘Peeping Tom’ laws make it impermissible to use a camera mounted on a UAV to spy on a neighbour’s backyard sunbathing habits. This is premised on the basis that a neighbour has a reasonable expectation of privacy protection under the Fourth Amendment of the US Constitution and is justified in thinking that no one should be looking from above. Should this be pursued in the courts the neighbour would likely sue for ‘intrusion upon seclusion.’ This is considered to be highly offensive behaviour to a reasonable person. Section 652B of the Restatement (Second) of Torts creates a cause of action for intrusion upon seclusion. Other examples of legal restrictions in the US on the use of UAVs are apparent from the court cases reported below.

Police UAVs may not look into windows of suspects for illicit drug manufacture.^[40] But the law does not generally recognise privacy rights regarding anything that the police can spy from a public vantage point.^[41]

Police officers in a helicopter may look into backyards without a warrant but walking through homes is off-limits without a warrant.^[42]

Neither can police use thermal imaging and other equipment for surveillance through walls and buildings where the equipment is not in ‘general public use’.^[43]

It may be permissible for police UAVs to follow a vehicle for surveillance purposes but this monitoring cannot be undertaken over an extended period of time as a warrant to do so may then be required.^[44]

However, if one were to take vigilante measures and bring down a UAV hovering over one’s property, the law is uncertain. The legality of this action depends on the height the vehicle is above ground level: generally if the vehicle is flying at 100 feet (30 m) above ground level then general aviation safety law applies and the house owner may be liable for wilful damage and endangering the safety of the neighbourhood.^[45] On the other hand, there may be instances where the landowner is entitled to protect property from intrusion by a drone. For example, under the Restatement (Second) of Torts, s 260,

one is privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if the act is, or is reasonably believed to be, necessary to protect the actor’s land or chattels or his possession of them, and the harm inflicted is not unreasonable as compared with the harm threatened.

This implies that in certain instances, a landowner would not be liable to the owner of the drone for damage necessarily or accidentally resulting from removing it from the landowner’s property.

In the US the Fourth Amendment regulates when, where and how the government may conduct searches and seizures. Note that this applies only to those acts that constitute a search and a court’s assessment will be focussed on the specific area being investigated. In 1967, in Katz v United States the US Supreme Court held that an FBI agent’s use of a bug to listen to the private conversations of Mr Katz while in a telephone booth violated his Fourth Amendment rights.^[46] Although there was no physical invasion one of the tests that the Court used was whether the person has a subjective expectation of privacy in the area to be searched and whether society deemed that expectation to be reasonable.

The manner of the ‘search’ has also been determinative. In Kyllo v United States, government agents used a thermal-imaging device to determine heat patterns inside the home of Kyllo.^[47] The Supreme Court’s initial presumption was that a warrantless search of a home was unreasonable. But ultimately the Court protected this ‘realm of guaranteed privacy’ by holding that obtaining information about the inside of a home that could not otherwise be obtained except by entering the home, through the use of technology not in ‘general public use,’ is a ‘search’ covered by the Fourth Amendment.

Applying the Fourth Amendment to UAVs thus necessitates asking the threshold question: was there a search? Depending on the factors such as the area of the search, the technology used, and whether society would respect a target’s expectation of privacy in the place searched, a reviewing court could decide the threshold question. If it was not a search, neither a warrant nor any degree of individualised suspicion would be required. If, on the other hand it was concluded that it was a search, then a court could further ask whether a warrant was required, if one of the exceptions applied and what the level of suspicion was in the instant case to uphold the search.

Hence, in analysing domestic UAV litigation under the Fourth Amendment, a reviewing court may be informed by cases surrounding privacy in the home and privacy in public spaces. In addition, reviewing courts will need to consider cases involving location tracking, manned aerial surveillance, those involving the national border, and warrantless searches under the special needs doctrine.

In conceptualising privacy, the law concerning activity in public and physical spaces can be more problematic. A continuum of privacy interests, of ‘zones’ of privacy, and of personal, social and public space has been acknowledged by the courts. Such spaces may extend vertically and horizontally. In the English common law tradition, much use has been made of the Latin maxim cujus est solum ejus est usque ad coelum et ad inferos (he who owns the surface of land also owns the sky stretching to the limits of the atmosphere and all the soil to the centre of the earth).

Applying this idea to privacy, it is suggested that a person may have a right to privacy in the ‘space’ above. Any intrusion into this space — the vertical zone — is an intrusion of privacy. Extant litigation in Australia and elsewhere discussed below will demonstrate that such a suggestion is not as absurd and as farfetched as it sounds.

The continuum of what is in the private domain and what is in the public domain may be visualised in two dimensions in a linear fashion or three-dimensionally as a bubble as shown in Figure 1. The boundary demarcating one from the other is hazy given that there is a tension between the totally selfish as opposed to the totally selfless one. The width and placement of the demarcation line could be weighted in terms of political interests, economic interests, and other interests, including religious and cultural ones. From this conceptualisation, we may have a core area that offers total privacy to a person — the umbra (similar to the dark central part of a sunspot) surrounded by the penumbra where there may be lesser expectations of privacy. Outside these two areas lies the public commons where an expectation of privacy may not exist.

Based on the preceding discussions, a review of common law jurisdictions was undertaken to understand what the law has been in regard to two recurring themes — that of aerial surveillance and that of privacy vis-á-vis nuisance and trespass law. Rather than discuss each case individually, decisions of the courts are provided as a summary.

Table 2 displays the results of this review of selected court cases involving the use of aircraft for surveillance and other purposes. The name of each case is given, its jurisdiction identified, the location information in the case, the technology involved and the main finding in the case. The cases are listed chronologically. From this chronological listing alone one may observe the development of case law dealing with this subject matter.

Table 2: Litigation – selected cases involving aircraft surveillance and court findings

*Litigants*	*Jurisdiction*	*Location information*	*Technology*	*Court finding*
Aerial surveillance cases
Smith v New England Aircraft Co, 270 Mass 511 (1930)	US	Flights at 31 m over cultivated trees	Aircraft	Trespass upheld
Hinman v Pacific Air Transport, 84 F 2d 755, 757 (CCA 9th Cir, 1936)	US			‘The air, like the sea, is by its nature incapable of private ownership, except in so far as one may actually use it’ – Haney CJ
Delta Air Corp v Kersey, 193 Ga 862, (20 SE 2d 245, 1942)	US	Property	Aircraft	Flight over property must result in actual interference in use of land before trespass is found
United States v Causby, [1946] USSC 99; 328 US 256 (1946)	US	Chicken farm	Military aircraft flying over chicken farm ruined egg production	Constituted a ‘taking’ of private property 5^th Amendment of Constitution requires compensation
Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334	UK	Advertisement sign over shop overhang		Court held projected out sign over building constituted a trespass
Re Lehrer and the Real Property Act (1960) 61 SR (NSW) 365	Australia	Leases to upstairs rooms in a building		Upstairs rooms airspace could be conveyed as separate leases
Coolidge v New Hampshire (1971) 403 US 443	US			Plain view’ doctrine – police must be in a lawful vantage point when conducting surveillance
Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd [1971] HCA 9; [1970-1971] 124 CLR 73	Australia	Building		A grant described as an easement was in fact transference of airspace
Bernstein of Leigh (Baron) v Skyviews and General Ltd [1977] EWHC 1; [1978] 1 QB 479	UK	Private property	Aerial photographs of property	‘restricting the rights of an owner in the airspace above the land to such height as is necessary for the ordinary use and enjoyment of his land’ – Griffith J
California v Ciraolo, [1986] USSC 159; 476 US 207 (1986)	US	Home backyard	Fixed wing aircraft at 330 m visual inspection with naked eye	Observation by police from a public vantage point and activities clearly visible gives no reasonable expectation of privacy
Dow Chemical v United States [1986] USSC 100; (1986) 106 S Ct 1819, 90 Led 2d 226	US	Factory	Precision aerial mapping camera photographs of factory	US Supreme Court ‘open field’ no invasion of privacy. Photographing from navigable airspace not a search
Florida v Riley [1989] USSC 61; (1988) 488 US 445	US	Greenhouse 3-7 m from home	Helicopter at 122 m observe marijuana plants through hole in roof	Court held not a search hence no warrant required
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490	Australia	Scaffolding stretched across into property		Constituted a trespass
Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) NSW ConvR 58	Australia			McLelland J airspace not “a legal or equitable estate or interest” in land
United States v Penny-Feeny, 773 F Supp 220 (D Haw, 1991)	US		Police helicopter with forward looking infrared (FLIR) device emissions from garage	District Court endorsed police use of equipment
United States v Smith, No 91-5077 (5^th Cir, Nov 12, 1992)	US			US Court of Appeals Fifth Circuit technological advances capable of expanding legally protected range of privacy individuals enjoy
Streisand v Adelman, Case No SC 077 257 (Cal WD, 31 Dec 2003)	US	Private property	Air photo survey aircraft at 150 m altitude as part of California Public Coastal Records Project	No privacy violation. Upheld 1^st Amendment of Constitution right to public on matters of public significance
United States v Jones, 132 S Ct 945 (2012)	US	Motor vehicle	GPS tracker	Reasonable expectation of privacy as a 4^th Amendment of Constitution search requiring a warrant
Curtilage and open field doctrines
United States v Hester, 365 US 57 (1924)	US	Outside home		Distinguishing between doctrines of curtilage and open field
Oliver v United States[1984] USSC 75; , 466 US 170 (1984)	US	At home		Defined curtilage – ‘sanctity of a man’s home and the privacies of life’ at 630
United States v Dunn[1987] USSC 56; , 480 US 294 (1987)	US	Home backyard		Criteria used for curtilage and whether protected from observation by passer-by at 301
Maisano v Welcher, [1991] USCA9 658; 940 F 2d 499 (9^th Cir, 1991)	US	Driveway		Not curtilage as no affirmative actions taken to block it from observation by passer-by

In the 1930 case of Smith v New England^[48] trespass was upheld and in Hinman v Pacific Air^[49] the judge ruled on the ownership of airspace hinging on actual use of it and is reiterated later in the case of Bernstein of Leigh (Baron) v Skyviews and General Ltd.^[50] In Delta Air Corp v Kersey^[51] the Court held that there must be actual interference in the use of the land before trespass is found. This is similar to the finding in United States v Causby^[52] where egg production was ruined because of aircraft activity over a farm. In Kelsen v Imperial Tobacco Co^[53] advertisement signs overhanging onto a neighbour’s property were deemed a trespass. This also occurred in the Australian case of LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd.^[54] Upstairs room airspace could be conveyed as separate leases as determined in Re Lehrer and the Real Property Act^[55] which was later supported by Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty^[56] and Depsun Pty Ltd v Tahore Holdings Pty Ltd.^[57]

In California v Ciraolo^[58] the observation by police from a public vantage point of activities provided no reasonable expectation of privacy. This was reiterated in Dow Chemical v United States^[59] and in Florida v Riley^[60] where photographing from a navigable airspace did not constitute a search. Using infrared devices to detect emissions is permissible United States v Penny-Feeny^[61] later endorsed by United States v Smith^[62] which said that technological advances expanded the legally protected range of privacy that individuals expect to enjoy. Streisand v Adelman^[63] suggests that there can be no violation of privacy on the grounds that the public had a right to know on matters of public significance. However, placing a GPS tracker on a vehicle to track it violates the Fourth Amendment – United States v Jones.^[64]

Under the curtilage and open field doctrines, at least in the US, a distinction is made between what is in the home and what is outside the home (United States v Hester).^[65] Any entry into a home requires a warrant. It is arguable whether the driveway or backyard is private property. Here the curtilage defines the sanctity of one’s private space free from interference either in trespass or from observation (Oliver v United States).^[66] Next, where such spaces are observable from a public vantage point then one’s privacy might be compromised and there may be no protection from peering eyes (United States v Dunn^[67] and Maisano v Welcher^[68]). Indeed as found in California v Ciraolo^[69] the observation is by visual inspection with the naked eye.

2.2.2 US privacy law developments

The following focuses on the development of privacy law in the US and in particular the use of drones for domestic surveillance operations. It is observed that this use has stretched interpretation of the Fourth Amendment and poses challenges to legislative responses. The Fourth Amendment provides a right to be free from unreasonable searches and seizures and a reasonable expectation of privacy. Drone surveillance may upset the concept of expecting privacy in some situations. A court may weigh up the reasonableness of drone activity by considering the location of the surveillance, the sophistication of the technology employed and society’s conception of privacy in a technological age.

While US citizens may expect substantial protections against warrantless government intrusions into their homes, the Fourth Amendment is less robust when the surveillance occurs in public places. Fourth Amendment protections are even less robust in areas immediately outside the home such as driveways and backyards.

Reasonableness under the Fourth Amendment may seem to be flexible and may have to be adjusted as people’s expectations of privacy change.

US jurisprudence on the Fourth Amendment-based privacy has seen courts shift position from the previously property-based trespass-nuisance criterion to one where there is a subjective expectation of privacy. As noted in US v Jones,^[70] the Fourth Amendment ‘protects people not places’ even though as a result, the protection of people requires reference to a place. This ‘physical space’ rationale from the case suggests that the concept is ripe for a further expansion in interpretation. There are also considerations of privacy in the home and where it is permissible and impermissible to intrude either with or without a warrant to enter. Here the ‘plain view’ doctrine holds sway since it depends on where the observer was situated and the location of the observed. Making a distinction between curtilage and ‘open field’ perhaps provides the initial divide between what is public and what is private.^[71]

In the US landowner rights are restricted with regard to the navigable airspace above private property. The US Supreme Court has stated that ‘the air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea.’^[72]

A further judicial shift in opinion especially with the use of drones is the ‘pilotless’ nature of the observation and how this sits with the Fourth Amendment. The expectation of the law is that there is a human observer and a human being observed, and the observation is made with the naked eye.

One common law concept that is increasingly under challenge to privacy law is the saying that ‘one man’s home is his castle’. This idea is encapsulated in the English common law of protecting one’s home against government intrusion. The parallel US legal doctrine is known as ‘Castle law’, or ‘Defense of habitation law’, which designates one’s place of residence as a place within which one enjoys protection from illegal trespass and violent attack. The protection extends to the curtilage — the enclosed area of land around a dwelling. Both the home and the curtilage can provide one with a reasonable expectation of privacy.

In the US at the 112th Congress, several measures were introduced that proposed restrictions to the use of drones. Senator Rand Paul and Representative Austin Scott introduced the Preserving Freedom from Unwarranted Surveillance Act of 2012, which would require law enforcement officers to obtain a warrant before using drones for domestic surveillance subject to several exceptions. Representative Ted Poe introduced the Preserving American Privacy Act of 2012 that would permit law enforcement officers to conduct drone surveillance pursuant to a warrant, but only in the investigation of a felony. Representative Shelly Moore Capita introduced the Farmers Privacy Act of 2012 which would prohibit the Environment Protection Agency (EPA) from conducting aerial surveillance of agricultural lands unless the EPA has consent from the farmer, has provided public notice, or has obtained a certificate of reasonable suspicion from the United States District Court for the District of Columbia. Representative Ed Markey introduced the Drone Aircraft Privacy and Transparency Act of 2013. This bill would amend the FAA Modernization and Reform Act of 2012 to create a comprehensive scheme to regulate government actors’ use of drones, including data collection requirements and enforcement mechanisms.^[73]

It may observed that UAVs may perfect the art of surveillance with available technology to the extent that it will engender discomfort and disquiet for many people. Echoes of George Orwell’s 1984 resonate where visions of an Oceania come into view (no pun intended) describing small flying devices roaming the neighbourhood and peering into windows. Calo strongly believes that the lack of a coherent mental model of privacy harm helps account for the lag between advances in technology and developments in privacy law.^[74] Drone usage has virtually ‘floated’ onto the civilian arena through a process of acclimation — first used for disaster relief and domestic purposes and then left in place where the local citizens become comfortable with its presence and in turn pay little or no attention to it. The public accept its omnipresence. The installation of CCTV cameras is a graphic illustration of such a process of acclimation.

The ‘responsible use of these emerging techniques requires more transparency and even application than police departments are accustomed to, but decrease in law enforcement discretion is its own achievement.’^[75] Safeguarding privacy in the new era may require police to obtain warrants for drone use that would violate reasonable privacy expectations. The exception could be in clearly defined emergencies or in stopping a crime in progress. At the same time the public need to be advised of any continuous monitoring that is planned such as at traffic trouble spots and that such monitoring is posted online at police and emergency and rescue websites.

Where data are collected that enables the identification of persons and unless it is part of a criminal investigation, the handling of such data must be subject to well-known and acknowledged Fair Information Practice Principles (FIPP) in the US, Australia and elsewhere. Such principles require notice that data are being collected, how it is going to be used, how one may access one’s own data to check for accuracy, the protection of the security of the data and the strict regulation for the retention or sharing of the data.

On the issue of using drones to track people, it seems unrealistic and could be a myth that UAVs could be programmed to track persons or suspects. Present technology suggests that such close surveillance is not yet possible. Practicalities such as the constant buzz of a distant propeller give way to the stealth and secrecy of person-tracking. In the combat zone, the constant buzz of the drone has earned it the name bangana (buzzing wasp) in Pashtu language. In Waziristan, Pakistan nearly everyone can see the drones 1500 m up in the sky all day and night as a constant reminder of an imminent strike and death.^[76]

2.2.3 Summary

To summarise, privacy in a majority of these reported cases is predicated initially on trespass and nuisance law especially when emphasising the curtilage and open field doctrines. The Fourth Amendment of the US Constitution refined expectations of privacy and one’s freedom from surveillance without a warrant and a just cause. Given the greater use of technology in surveillance cases, the ambit of the privacy cases suggests that technology itself might extend what expectations of privacy one may or may not assert. Where privacy is concerned there does not appear to be any difference whether in the common law or public law. However, it appears that the protection of privacy as a ‘property-based’ concept that encompasses private property, trespass and nuisance law has morphed to a notion of privacy as a constitutional right and an expectation right.

In the context of UASs and UAVs, autonomy refers to the automation of a particular function within programmed limits. Human operators supervise all autonomous systems at some stage. Autonomy does not mean ‘computers are making independent decisions and taking uncontrolled action’.^[77]

In relation to the safe use of UAVs, current autonomous systems are considered ‘brittle platforms’. These platforms are brittle because unmanned aerial vehicle operations may suffer irreversible operational errors that occur in real-time. One example is the ease with which some UAS communication hardware may be ‘hacked’ into and its control taken over by persons with malicious intentions. As an experiment, a team of university researchers were able to penetrate the electronic system of a global positioning system (GPS) attached to an unmanned aerial vehicle based on a dare issued by the US Department of Homeland Security.^[78] Members of the Radio Navigation Lab at the University of Texas at Austin apparently ‘spoofed’ the UAV using an unencrypted GPS signal, one normally used by civilian planes, together with inexpensive equipment to achieve their objective. This may be a trivial illustration of brittleness but it nevertheless highlights the vulnerability of the system to an attack. UAVs in the combat zone may be subject to attack and suffer damage — friendly or otherwise. Such ‘brittleness’ may retard the potential benefits that could be obtained from the advances in autonomous systems.^[79]

In the long-term, the US Department of Defense has reviewed the future of UASs in regards to training of personnel, operations of such systems and their sustainability in future.^[80] Because of the rapid growth of UAS inventories since 2000, there have arisen questions of the long-term sustainability and support for these systems. In particular, the training of sufficient personnel to operate and maintain the aircraft, the provision of adequate facilities and other infrastructure to support these systems and to provide sufficient access to airspace and training ranges for these purposes. The emphasis on long-endurance, unmanned intelligence, surveillance and reconnaissance assets, many with strike capabilities, has meant that there is a demand for support infrastructure in personnel and hardware. These developments also suggest a need for enhanced access to the NAS.

Currently, military UAS operations within the US conducted outside the ‘restricted’, ‘warning’ and ‘prohibited’ areas have to be authorised by the FAA under a temporary Certificate of Waiver or Authorization (COA) with limited conditions. Other users of the NAS for research purposes include the National Aeronautics and Space Administration (NASA), the Department of Homeland Defense/Homeland Security (DHD/DHS) and the Defense Support of Civil Authorities (DSCA) missions for disaster relief, search and rescue. The challenges of integrating the civilian with the military airspace are formidable and require multi-agency collaboration and on-going negotiations with the FAA. One wonders what will happen when civilian UAVs take to the skies in larger numbers than at present. After 2015, US skies will be open to UAVs and access to the NAS will be permitted. This access of civilian UAVs to the NAS is a wish of Congress through the FAA Modernization and Reform Act of 2012 where the FAA should have in place mechanisms that provide an ‘open skies’ policy to UAV by 2015.

Unmanned aerial vehicle technology may have a ‘dual-use’ — military and civilian. As such, manufacturers or exporters of the technology will need consider export controls within their respective markets. All unmanned aerial vehicle related goods are likely to require an export permit to other countries, even for civilian use. The UK has a general export permit for unmanned aerial vehicle autopilots for all members of the EU. To obtain such a permit a manufacturer will need to request the recipient or buyer for an end-use statement that forbids the re-export of the goods outside the EU. These export controls are the result of an international arrangement and a regime. Signatories to the Wassenaar Arrangement and the MTCR are two international treaties that have jointly drawn up lists of controlled unmanned aerial vehicle goods.^[81]

The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies is a multilateral export control regime comprising of 40 participating countries. The goal is to contribute to regional and international security and stability, by ensuring transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies.

In the US the regulator is the Department of State and Department of Commerce through the International Traffic in Arms Regulations (ITAR) legislation.^[82] The ITAR is a set of US government regulations that control the export and import of defence related articles and services on the US Munitions List (USML). Under the ITAR some UASs are classified as weapons that are covered under the USML. The trade in these systems and services require an export licence to be approved by the US Department of State’s Directorate of Defense Trade Controls. In September 2010, the US Senate approved the US-UK and the US-Australia Defense Trade Cooperation Treaties. The treaties allow for the export or transfer of certain defence articles and defence controlled services pursuant to the ITAR between certain persons in the US, UK and Australia without the need for export licences or other ITAR approvals. There is, however, an open debate between the Department of State, industries and academia concerning the ITAR regulations and harm to US businesses and higher education institutions that market and use UAVs.^[83]

The MTCR is an informal voluntary partnership between 34 countries that aims to prevent the proliferation of missile technology. Established in April 1987, the MTCR aims to curb the spread of unmanned delivery systems for nuclear weapons, in particular those that could carry a payload in excess of 500 kg and a minimum range of 300 km (Category 1). The MTCR adheres to an export policy guideline applied to a common list of controlled items. Under MTCR guidelines the export of UAVs carries a ‘strong presumption of denial’ of an export licence. All decisions are by consensus and MTCR partners regularly exchange information about relevant national export licensing issues.

In the UK, the Ministry of Defence (MOD) has authority over unmanned aircraft export controls.^[84] A company wishing to export controlled goods would require a MOD clearance including the release of classified information held by defence companies. Form 680 is used to apply for clearance to consider the release of classified information held by defence companies. However, obtaining an F680 clearance for the marketing of a product to a specified destination does not guarantee the grant of an export licence. The F680 simply provides some indication as to the likelihood of any difficulty in obtaining an export licence.

3 Some Preliminary Conclusions

This paper is about the policy, legal and privacy implications of the use of UAVs and UASs generally in civilian environments. The survey provided a background for an understanding of the various names used to describe these aircraft from drones to attack drones and disaster drones. Pilotless aerial vehicles have been used since the turn of the century, for instance, in the two World Wars.

A summary table was used to help conceptualise the scale and breadth of different configurations of UAVs. The table underscores the myriad sizes, scales and functional capabilities of selected UAVs whether in the civilian or military use. While mass is a surrogate measure for a classification system, it seems that a better criterion is to use kinetic energy impact levels as a taxonomic tool. A feature of such comparisons is that vehicles with a mass of less than 150 kg — classed as small UAV — is becoming an attractive platform for many civilian applications. Whether this becomes a standard configuration will depend largely on policy and regulatory considerations.

Public awareness of UAVs and the political understandings of UAVs are thought to be paramount if there is to be support and acceptance of the technology and its future development. The introduction of UAVs to domestic airspace raises safety and integration issues. The lack of a ‘detect and avoid’ system is a key technology that is still missing in the use of UAVs. The current ban on commercial use of UAVs other than the provision of services, such as aerial photography, may have an influence on further research and development.

The regulation of UAVs is nascent and poses several legal and regulatory challenges. Different jurisdictions have approached such challenges in particular ways depending on national objectives and priorities. Examples from the US, UK and Australia show that air navigation safety is the top-ranked concern that has attracted close attention. Other regulatory challenges include minimising risk for all users of navigational airspace, compliance with air navigation rules and benchmarking between nations to share best practices in the unmanned aerial vehicle industry.

The use of UAVs for surveillance purposes has produced much opposition and debate everywhere as well as court litigation. Precedents from the common law suggest that after trespass and nuisance, constitutional guarantees of an expectation of privacy may become the dominant source of litigation. In particular, the focus on surveillance cases in the US involving aircraft and violations of the Fourth Amendment has highlighted the evolution of the law and the changes to court opinions that guarantee the expectations of privacy of American citizens. Preliminary conclusions from this section on privacy are that UAVs engender both disquiet and discomfort given the unconscious feeling that there are ‘eyes in the sky’ observing and recording activities of private citizens. While having become acclimated to their presence, unlike closed circuit televisions (CCTV), current versions of UAVs emit an audible buzz and a reminder of their presence in the air.

The final section discussed technical and operational issues on the use of UAVs. Vehicular autonomy and the safety of operations featured prominently in the discussion. Attention to these issues may provide the framework for the unmanned aerial vehicle industry and its development. However, this is not to detract from its civilian and military use and the restrictions on its manufacture and export in a global context.

The contribution of this paper on the use of UAVs and UASs generally in civil applications has drawn out the major implications on policy, law, privacy and its technology and operations. First, it has identified that definitional issues need immediate resolution.

Second, this paper has identified the regulatory challenge for all jurisdictions is the assurance of an equivalent level of safety for the operation of UAVs in the national airspace. There is a crying need for the development of harmonised international air navigation rules. This should not discriminate between mass, size and any other criterion. However, much research in terms of detailed, cross-county comparisons is needed to ensure that the best practice of any jurisdiction can become a feature of an international rule or regulation.

Third, this paper has identified that the many shades of privacy concerns across jurisdictions. In particular, the court cases provide guidance on the legal bases of the violation of privacy and the expectations of privacy.

Finally, many issues remain unresolved. Definitions of UAVs can be problematic as is the lack of a truly autonomous system for integration into national airspace because the technology is still evolving. A truly national aviation system, which integrates UAVs seamlessly, may be difficult to establish. The difficulties stem from the standards of airworthiness that are acceptable for civilian purposes, the development of capabilities of ‘sense and avoid’ systems and pilot or operator training and certification. Unmanned aerial vehicles are unique and call for unique solutions to the problems and challenges of this new industry.

^[*] Institute for Applied Ecology and Faculty of Education, Science, Technology and Mathematics, University of Canberra, Canberra, ACT 2617, Australia; Email: George.cho@canberra.edu.au; Tel: +61 262015650; Fax: +61 262012328.

^[2] Adam C Watts, Vincent G Ambrosia and Everett A Hinkley, ‘Unmanned Aircraft Systems in Remote Sensing and Scientific Research: Classification and Considerations of Use’ (2012) 4(6) Remote Sensing 1671, doi:10.3390/rs4061671.

^[3] Steven Aftergood, ‘Greater Autonomy for Unmanned Military Systems Urged’ on Secrecy News (6 September 2012)

^[5] C Stewart, ‘Drones, Lives and Liberties: As Civilian Use of Unmanned Aerial Vehicles Grows, So Too Does the Risk to Our Privacy’, The Australian (Sydney) 1 March 2012, 11.

^[6] D J Pines and F Bohorquez, ‘Challenges facing future micro air vehicle development’ (2006) 43(2) American Institute of Aeronautics and Astronautics Journal of Aircraft 290.

[*] Source: European Unmanned Vehicle Systems Association (EuroUVS) (2006) UAV System Products and Models: All UAV Systems Referenced.

^[10] United Nations, The Principles Relating to Remote Sensing of the Earth from Outer Space (3 December 1986), A/RES/41/65; and George Cho, ‘Overview of Legal Issues’ in Matxalen Sánchez Aranzamendi, Rainer Sandau and Kai-Uwe Schrogl (eds), Current Legal Issues for Satellite Earth Observation, ESPI Report 25 (European Space Policy Institute) 36-60.

^[11] European Defence Agency, European Commission UAS Panel: 5th Workshop on Research and Development, Discussion Paper (9 February 2012)

^[12] Chicago Convention on International Civil Aviation, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947).

^[14] European Defence Agency, above n 11; See also K Dalamagkidis, K P Valaranis and L A Piegl, On Integrating Unmanned Aircraft Systems into the National Airspace System: Issues, Challenges, Operational Restrictions, Certification and Recommendations, (Springer, 2009).

^[16] M Nas, Pilots by Proxy: Legal Issues Raised by the Development of Unmanned Aerial Vehicles (2006) Unmanned Aircraft Technology Applications Research, 25 <http://www.uatar.com/LegalPaper on UAVs.pdf> .

^[18] ICAO, Unmanned Aircraft Systems (UAS) (Cir 328 AN/190, Montreal, Quebec, Canada, 2011) Also at

^[19] Australian Government, Department of Infrastructure and Transport, Australia’s State Aviation Safety Program (April, 2012) 38; See also Civil Aviation and Safety Authority (CASA), Australia’s State Safety Program

^[22] Civil Aviation Authority, CAP 722: Unmanned Aerial Vehicles Operations in UK Airspace – Guidance (10 August 2012)

^[28] Vision 100 Century of Aviation Reauthorization Act 2003, Pub L No 108-176, 117 Stat 2567 (2003).

^[29] FAA Modernization and Reform Act of 2012 (FMRA), Pub L No 112-95, 126 Stat 11 (Feb 2012).

^[30] Association for Unmanned Vehicle Systems International (AUVSI), Unmanned Aircraft System Operations Industry ‘Code of Conduct’ (2012)

^[31] B Elias, Pilotless Drones: Background and Considerations for Congress Regarding Unmanned Aircraft Operations in the National Airspace System (10 September 2012) <http://fas.org/sgp/crs/natsec/R42718.pdf> .

^[33] P Narayan, P Wu and D Campbell, ‘Unmanning UAVs – Addressing Challenges in On-Board Planning and Decision Making’ in Francois Legras (ed), First International Conference on Humans Operating Unmanned Systems HUMOUS'08, (3-4 September 2008, Brest, France) <http://conferences.telecom-

bretagne.eu/data/humous08/proceedings/16-campbell08humous.pdf>; See also JAA, above n 20.

^[35] American Civil Liberties Union (ACLU), Protecting privacy from aerial surveillance: Recommendations for government use of drone aircraft (2011)

^[36] G Downie, ‘Drones, with adequate safeguards, should add to our safety’, The Canberra Times, (Canberra) 10 June 2012, 22.

^[37] C Stewart, ‘Drones, lives and liberties’, The Australian (Sydney) 1 March 2012, 11.

^[38] United States Air Force (USAF), USAF Instruction 14-104 (23 April 2012) Oversight of Intelligence Activities. See S Aftergood, ‘USAF Drones may conduct “incidental” domestic surveillance’ on Secrecy News (8 May 2012)

^[45] N Shachtman, No, you can’t use a drone to spy on your sexy neighbour (22 June 2012) Wired Magazine <www.wired.com/dangerroom/2012/06/ff_dronerules/>.

^[53] Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334.

^[76] C S Smith, ‘Terror from the heavens: Drones are traumatising Pakistan’ The Canberra Times (Australian Capital Territory) 26 September 2012, 9.

^[77] Defense Science Board, Task Force Report: The Role of Autonomy in DoD Systems (July 2012) US Department of Defense (DOD)

^[79] S Aftergood, ‘Greater autonomy for unmanned military systems urged’ on Secrecy News (6 September 2012)

^[80] Under Secretary of Defense for Acquisition, Technology and Logistics, Report to Congress on Future Unmanned Aircraft Systems Training, Operations, and Sustainability (April 2012) US Department of Defense <http://www.fas.org/irp/program/uas-future.pdf> .

^[82] Directorate of Defense Trade Controls, International Traffic in Arms Regulation (1 April 2012) US Department of State

^[83] Directorate of Defense Trade Controls, Defense Trade Treaties Fact Sheet (2012) US Department of State

Journal of Law, Information and Science