Counter-UAS Regulation

The malicious or negligent use of drones gives rise to significant risks. While the risky behaviours are subject to existing legal sanctions, the apprehension of perpetrators can be difficult.

Licensing is sometimes proposed as a means of controlling drone operations. However, licensing, even when coupled with surveillance and enforcement, does not prevent unlicensed individuals from engaging in the activity, or licensed individuals from undertaking the activity in an unsafe manner. Notwithstanding the prohibition on using a hand-held cellphone while driving, in the 2017 calendar year the New Zealand Police recorded 23,412 offences of using a hand held device for calling or texting while driving (New Zealand Police, 2018).

Application of New Zealand Privacy Law to Drones

An Australian woman discovered that real estate advertisements,
including a large billboard, carried an image of her sunbathing in her
backyard. Would New Zealand privacy law provide adequate
protection?
Source: “Mt Martha woman snapped sunbaking in g-string by real
estate drone”, Herald Sun, 17 November 2014.

New Zealand privacy law encompasses the torts of wrongful publication of private facts and intrusion on seclusion, the Privacy Act 1993, and various provisions in the Crimes Act 1961 and the Summary Offences Act 1981. The privacy torts set a high threshold, requiring a privacy violation to be “highly offensive”, a test that is highly dependent on the circumstances of the individual case. There is considerable uncertainty over whether the privacy torts provide any effective cause of action against privacy violations by drone.

The Privacy Act creates an offence of an “interference with privacy”. One of the most likely causes of an interference with privacy involving drones is that personal information has been “collected by means that, in the circumstances of the case … intrude to an unreasonable extent upon the personal affairs of the individual concerned”.

The Privacy Act appears to provide an avenue for redress for a person who believes that they have suffered a privacy violation, but there are significant hurdles to overcome. Two particular problems are:

• The victim may not be able to see the pilot, and there are unlikely to be any identifying characteristics on the drone, meaning that it will be very difficult to hold a specific individual accountable.
• In a test case in 2015, the Privacy Commissioner held that if a drone is not recording then there is no information collected, so no information privacy principle can be violated and there is no interference with privacy.

There are sufficient uncertainties in the application of the current body of tort and statute that a person upset by unwelcome surveillance cannot be sure of an acceptable resolution, even when that surveillance takes place in a location where they have a reasonable expectation of privacy.

New Zealand’s current privacy framework requires clarification to better accommodate the challenges posed by drones. Some of the modifications could potentially be achieved by way of a code of practice issued under the Privacy Act, which may provide a relatively low-cost means of setting the standard of acceptable behaviour. Challenges will still remain because the characteristics of drone technology make it difficult to identify the operator, which in turn makes it difficult to obtain any legal remedy. Such challenges may mean that in some instances an alternative, more direct means of intervening to protect one’s right to privacy would be efficient.

Source:
This article summarises key aspects of the recent paper:

Shelley, Andrew (2016) “Application of New Zealand Privacy Law to Drones”, Policy Quarterly, 12(2):73-79, May.

A copy of the full paper can be downloaded from the Policy Quarterly website or Andrew’s author page on SSRN.

Study Quantifies Benefits from Beyond-Line-of-Sight use of UAVs

AeroVironment Puma being hand-launched Photo: Sgt. Bobby Yarbrough - http://www.marines.mil/Photos.aspx?igphoto=2000010661 Crop of 130304-M-DE426-001.JPG. Licensed under Public Domain via Wikimedia Commons.

Andrew Shelley Economic Consulting Ltd teamed with Aviation Safety Management Systems Ltd to quantify the potential economic benefits to New Zealand from allowing beyond-line-of-sight use of Unmanned Aerial Vehicles (UAVs) for pasture management, forestry, and monitoring electricity infrastructure. The report, commissioned by Callaghan Innovation, estimates that benefits to New Zealand could be in the order of $151m - $189m per year.

The Civil Aviation regulatory framework in New Zealand currently requires the pilot of a UAV to maintain visual contact with the aircraft at all times, or otherwise to have an observer who maintains visual contact, to ensure that appropriate action can be taken to avoid collision with any manned aircraft. Beyond-line-of-sight use provides opportunities for additional economic benefits to be realised, but that will require additional measures to be in place to ensure that collisions do not occur. Research and practical experience suggest that line of sight is restricted to a distance of from 500m to approximately 1.4km.

The largest gains from beyond line-of-sight use of UAVs arise in the forestry sector, where the use of UAVs for pest and disease monitoring and control has the potential for gains of at least $72m-$95m per year. The nature of forest plantations is such that line-of-sight use of UAVs is highly restricted and little benefit can be gained. When beyond-line-of-sight use is adopted, benefits from enhanced control of Dothistroma in radiata pine plantations could be as much as $69m per year, and improved control of the eucalyptus tortoise beetle could generate a further net benefit of $26m. Control of other pests and diseases would generate further benefits.

The gains from UAV use in pasture management are potentially very large, but the majority of those benefits can be obtained from line-of-sight use. Given assumed high take-up rates in dairy, but relatively small farm sizes that can be covered relatively efficiently with line-of-sight operation, the gains from beyond-line-of-sight use in dairy are estimated to be approximately $29m per year. Sheep and beef farming is assumed to have limited take-up rates (approximately 20% of farms), but the much larger size of these farms means that the gains are larger at an estimated $38m per year.

The use of UAVs in electricity infrastructure inspection allows for more frequent inspections, better targeted maintenance and reduced outage times. Reduced outage times on the electricity distribution system could provide economic benefits to consumers of from $4m to $19m per year. Reductions in the cost of maintenance would yield approximately another $7m per year. Additional safety benefits occur from avoiding having inspections conducted by low-flying helicopters and reducing the amount of time that linesmen may have to work at height, but these have not been quantified.

For more information:

• Read the Callaghan Innovation press release;
• The New Zealand Herald article;
• The same article on the National Business Review;
• Visit the Aviation Safety Management Systems website;
• Download the report here or from the Callaghan Innovation website.