The Future of Unmanned Flight (Part 4): Data Protection and Privacy – Open Issues and the Way Forward   

This article is part of the “Future of Unmanned Flight” series, which presents the current regulatory framework of drones in the EU and Bulgaria, examines open issues regarding privacy, data protection, liability, insurance, and any other developments in the growing industry of unmanned flight.

Be sure to regularly check the Kambourov & Partners’ website and social media accounts for analyses, news and updates regarding the regulatory world of drones.

This article is the second part of the discussion of drone-related data protection and privacy. For an overview of the current legal framework, click here.

Open Issues

Even though the suggested and already in place requirements are instrumental in protecting the privacy and personal data of citizens, they still largely rely on the principle of proportionality, which raises the questions of when and for what goals it is permissible to use UAS for the collection of private data.

For example, if a journalist uses drone footage of the private home of a known politician to illustrate possible embezzlement or abuse of power used to purchase expensive items, is the capturing of personal data by the drone permissible? The current interpretation can be found in the well-known case of the ECtHR concerning published photographs of the Princess Caroline of Monaco dining with actor Vincent Lindon, where the Court ruled that the balancing of the protection of private life against freedom of expression “should lie in the contribution that the published photographs and articles make to a debate of general interest”(1). In the Caroline von Hannover v Germany (2004) case, the Court decided that the public didn’t have a real interest in how she generally behaves in her private life even if she is a public figure, but in the above hypothetical example, the public clearly has an interest in knowing whether government funds are being mismanaged. It raises the question – was the footage instrumental in providing information to the public or could have more traditional journalistic methods sufficed?

Because this balancing of rights is left to the courts, protection of personal life becomes possible only post-factum, leaving citizens guessing whether and for what purposes UAS might follow them on the streets and in their homes. This can be greatly minimised by the division of airspace categories for UAS introduced in the Implementing Regulation (more details here), which carries strict requirements of who can overfly people and residential areas, paired with mandatory identification and growing rules on privacy by design. However, due to the possibility of drone use proliferation in the law enforcement sector or under pretexts of national security reasons even if commercial use regulations are strictly applied and accurately communicated to the citizenry, fear of possible abuse of the technology remains ever-present. A great example comes from one response to the COVID-19 pandemic when a city in Connecticut, USA, proposed that unmanned aircraft be used as a way to responsibly monitor the body temperature and social distancing of the population. Even though they assured the public that no private homes will be monitored, that face recognition would not be used, and that data will be automatically anonymized, the citizens pushed back due to disbelief in the promised measures until the program proposal was quickly abandoned(2). This goes to show that no matter how well privacy by default or design is implemented, no matter how well-suited to the policy or business need a UAS-based service is, or how many mitigations are taken and assurances made, the confidence of citizens is established on the general trust to the public bodies that govern it, be that a state or inter-state government, a regional administration or a local police department.

Way Forward

Therefore, even though great steps are being taken towards the protection of the privacy and personal data of citizens in law, the development of privacy rules should be coupled with educating people about their rights as well as increasing trust in the technology and the public bodies implementing it. A general mistrust in public institutions cannot be mitigated by simply drafting solid privacy laws – the citizenry needs to have positive experiences in dealing with those implementing the legislation, to see transparency in their drafting and to have the possibility to be an active part in the shaping of the privacy laws, on which the future of unmanned flight largely will depend.

(1) Case of von Hannover v Germany (2004) – link to judgment

(2) Taylor, P. (2020). Could ‘Pandemic Drones’ Help Slow Coronavirus? Probably Not—But COVID-19 Is A Boom For Business. (link to news article)