© mcinnes cooper, 2015 uavs and privacy david ts fraser ([email protected]) acadia uas...

© McInnes Cooper, 2015

UAVs and privacy

David TS Fraser ([email protected])

Acadia UAS

26 November 2015


• Background

– Why I care

– A note about “technopanic”

• Legal landscape

– Government / law enforcement

– Business

– Media

– Individuals

• Over the horizon

Outline


Background - Why I care

• About me

– Practicing privacy law for more than a dozen years

– Strong interest in media, journalism, photography

– Strong geekish tendencies

– Recent hobbyist UAV owner


• There is a very strong tendency for people to freak out about new or disruptive technology, particularly if it has any capacity to collect information about individuals

– Telephones

– Kodak cameras

– Camera phones

– Drones

• Often end up with over-regulation that is disproportionate to the risk

• Even worse with drones because most people don’t have a good handle on what “drones” are or do. They’re just extra-creepy.

A note about “technopanic”


So are there no issues?


Perception v Reality

Perception Reality


• How you are affected/regulated by privacy laws depends upon who you are and what you are doing

• Generally technologically neutral

• No specific privacy rules – yet – for UAV operators

– Government

– Business

– Media

– Individuals

Legal landscape


• Old maxim from the 13th century:

“cujus est solum, ejus est usque ad coelum

et ad ed inferos”

the owner of a piece of land owns everything above and below it to an indefinite extent

•Cases before aviation

•You can’t build a bridge over your neighbour’s property

“Ownership” of airspace


• Simplification:

– Passage of aircraft over property in a way that does not interfere with owner’s use of property is ok.

– Passage of aircraft over property at the level where the owner uses or can use the property may be trespass.

– Passage of aircraft over property above where owner uses the property but in a manner that interferes with use of the property may be nuisance.

Trespass or nuisance?


• All privacy laws in Canada regulate the collection, use and disclosure of “personal information”

• If it ain’t personal information, privacy laws don’t apply.

• What is “personal information”:

– Any information about an identifiable individual.

– If the person can’t be identified, privacy laws generally don’t apply.

• For privacy statutes, whether something is “public” doesn’t matter.

• Corporations have no privacy rights.

All privacy laws


• All public sector entities in Canada are subject to federal or provincial privacy laws

• Not consent-based

• Generally limit collection to what’s necessary for legitimate operations

• From the Privacy Act (Canada):

4. No personal information shall be collected by a government institution unless it relates directly to an operating program or activity of the institution.

• Pretty broad latitude

Government / Law Enforcement


• But also the Charter:

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

• All depends on whether there is a “reasonable expectation of privacy” in the totality of the circumstances.

• In R. v. Tessling, [2004] 3 SCR 432, 2004 SCC 67, the Supreme Court of Canada said that overflight using FLIR looking for grow ops does not violate s. 8 of the Charter.

Government / Law enforcement


• All businesses in Canada are subject to privacy laws that regulate the collection, use and disclosure of personal information in the course of business.

• It is consent based, but consent needs to be commensurate to the sensitivity of the personal information.

• Regulators likely take the position that information about my house or property is information about me.

Business


• News media and creative industries are generally not subject to privacy statutes

• The statutes often carve them out

• Subject to common law or statutory “invasion of privacy” or common law “intrusion upon seclusion”

– Was there a reasonable expectation of privacy?

– Was it intruded upon in a manner that would be highly offensive to a reasonable person?

Media


• Very similar to media

• Not subject to federal or provincial general privacy laws

• Subject to common law or statutory “invasion of privacy” or common law “intrusion upon seclusion”

– Was there a reasonable expectation of privacy?

– Was it intruded upon in a manner that would be highly offensive to a reasonable person?

Individuals


• The regulation of UAVs is evolving and some suggest that privacy needs to be embedded in UAV regulations

• Privacy Commissioner advocated for this.

• New idea of “privacy sensitive” sites

Over the horizon


From the Privacy Commissioner


• I disagree.

– Nothing to show the current system is broken.

– Our current privacy laws adequately deal with the evolving status quo.

Over the horizon


Questions?

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© mcinnes cooper, 2015 uavs and privacy david ts fraser ([email protected]) acadia uas...

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