privacy (Smoking Gun, 2015; Cummings, 2015; Farivar, 2015).
The negative emotions experienced by those subject to perceived privacy violations, and the behavioural responses observed in the Helsinki experiment, are economic costs to those involved. Such responses may also involve behaviours – such as the firing of a gun – that create risks, and therefore economic costs, to others. An efficient level of drone activity can only be achieved if the economic costs drones induce are taken into account by drone operators, which in turn requires a mechanism to transfer those costs to the drone operator. It is the role of the legal and regulatory system to facilitate this transfer.
The remainder of this article first summarises relevant aspects of the technology associated with drones to provide an appreciation of some of the challenges that might arise in a legal and policy context. It then considers privacy regulation in New Zealand by way of the privacy torts, the Privacy Act 1993 and other relevant legislation. The tort of intrusion on seclusion is potentially highly relevant, although there are questions over whether the threshold of ‘highly offensive’ will prove to be too high. The Privacy Act creates a wrong of ‘interference with privacy’ that is potentially applicable to drones. This article considers practical issues with enforcement and concludes with suggested clarifications to the privacy regulatory framework.
Drone technology
A drone is the colloquial name for what is officially known as a remotely piloted aircraft system or unmanned aircraft system: a flying machine without a pilot on board. In its typical use this term encompasses unmanned fixed-wing aircraft and unmanned helicopters (with any number of rotors). A drone consists of the flying machine and the attendant control systems, which may include some means of remotely controlling the craft from a distance, such as radio control.
Whereas traditional radio-controlled aircraft are flown within sight of the operator, small drones3 increasingly have two technologies that enable them to be flown beyond the line of sight of the operator, even though such operations are generally not legal. First, many small drones can be programmed to follow a series of GPS waypoints so that they can fly a pre-set path over points of interest. The GPS waypoints will be generated on a software application that typically uses Google Maps, so it is possible to identify with a high degree of precision a specific address, house or location that the drone is to fly to. The operator of the drone is able to watch the progress of the aircraft on a screen, without needing to physically observe the craft. Second, small drones may have ‘first-person view’ technology, which transmits the video from a camera mounted on the drone back to the operator. First-person view enables the operator to see the view through the drone camera and pilot the craft as if on board the drone itself.
‘Nano-UAVs’ (drones weighing less than 500g) may lack some of these technologies, but even a hand-sized nano-UAV weighing just 50g, including battery, is still capable of carrying a camera and operating with first-person view.4 Some nano-UAVs have been developed specifically for surveillance purposes, mimicking birds and insects to reduce the likelihood of detection (see, for example, Ackerman, 2011).
A small drone is typically configured so that the video is broadcast back to the pilot. This imagery can be recorded. Older drones and nano-UAVs may simply record imagery on a memory card for later viewing.
New Zealand privacy law
New Zealand has two privacy torts: wrongful publication of private facts and intrusion on seclusion. These torts are heavily complemented by both civil and criminal statutes, and remain an area where further relevant development is possible. This section reviews the two privacy torts and then gives particular consideration to how the Privacy Act might apply to drones.
22 sUAS Guide / Q3 Update, October 2016