sUAS Guide / Q3 Update, October 2016 21
Baylon, 2014). Following reports that small drones have come within feet of passenger planes (see, for example, Brooks-Pollock, 2014), research has indicated that a 3.6kg drone could fracture the turbine blades of a jet aircraft, rapidly destroying the entire engine, which can potentially cause structural damage to the aircraft and even a catastrophic fire (Mackay, 2015; Wasserman, 2015; ATSB, 2013; Gates, 2015).
There has also been rising public concern about privacy issues associated with drones. New Zealand has seen newspaper articles about drones being used to film another person’s property and to take photos of children at a public swimming pool (Harris, 2015; Bonnallack and Young, 2015). While the latter incident involved a father photographing his children at a school swimming sports (Bonnallack, 2015), the reporting of it highlights a general disquiet among the public about potential violation of privacy. In Australia a woman discovered that real estate advertisements, including a large billboard, carried an image of her sunbathing in her backyard (Panahi, 2014). This incident illustrates that surveillance and privacy violations can occur without trespass, such as when a drone is located over a neighbouring property or public way such as a road, footpath or walkway. It also demonstrates that privacy violations may be inadvertent: in this instance the woman happened to be sunbathing next door to the property that was the focus of the aerial footage.
In New Zealand the civil aviation rules currently contain a default requirement for drone operators to obtain permission to fly over persons or property (Civil Aviation Authority, 2015b, rule 101.207(a)(1)). However, civil aviation regulation is concerned solely with matters of safety, so if an operator can demonstrate a sufficient level of safety, then that restriction can be removed (Civil Aviation Authority, 2015a, p.12). Furthermore, these rules have no effect on non-trespassory surveillance. While the civil aviation rules may have incidental benefits for privacy in some situations, addressing the potential problem of privacy violations perpetrated with the aid of a drone must rely on an appropriate framework of privacy regulation.
Gavison (1980) suggests that there are three fundamental and independent elements of privacy: secrecy, anonymity and solitude. Westin (1967) argued that the control of personal information lies at the heart of privacy, but this is a facet of Gavison’s secrecy. Secrecy and anonymity are arguably the foundation of New Zealand’s tort of wrongful publication of private facts, and solitude the foundation of the tort of intrusion on seclusion, while the right to control personal information about oneself lies at the heart of New Zealand’s Privacy Act 1993.
An additional value closely related to privacy is autonomy, which is the ability to make life decisions free from the influence or control of others (Thompson, 2015). Autonomy is a privacy value that may be threatened by widespread use of drones, as individuals feel that they must change or moderate their private behaviour in the face of potential surveillance (Martin, 2013). The perceived need to alter behaviour was demonstrated by an experiment undertaken in Helsinki, which studied the effects on ten volunteer households of ubiquitous surveillance within each home over a period of six months (Oulasvirta et al., 2012). The Helsinki Privacy Experiment demonstrated that even individuals who consent to surveillance will actively alter their behaviour in order to regulate what those carrying out the surveillance perceive, and the surveillance system was ‘a cause of annoyance, concern, anxiety, and even rage’. These emotions may be sufficiently strong that individuals are motivated to undertake prima facie illegal behaviours, such as attempting to shoot down or otherwise destroy a drone. In the United States drones have been shot down in New Jersey, Kentucky and California. In all three cases the shooter justified their actions by claiming that they were protecting their right to
privacy (Smoking Gun, 2015; Cummings, 2015; Farivar, 2015).