It’s no surprise that I like information; it is, after all, my stock in trade. It is also a pitfall, as I have a tendency to tumble down obscure research rabbit holes and emerge, blinking, into the bright light of day several hours later (for the sake of my client’s bills, I indulge in these flights on my own time).
I stumbled into one such rabbit hole recently, and, having emerged, I’m smarter, but a great deal more paranoid. It turns out we are being watched.
Several weeks ago, with little (read: no) fanfare, Ontario’s Information and Privacy Commissioner (IPC) released a new paper on drones entitled, “Privacy and Drones: Unmanned Aerial Vehicles”.
Drones, or unmanned aerial vehicles (UAVs) are what you might think – essentially robot planes that fly under the control of an operator who isn’t actually on board. At their most innocuous, they are radio-controlled model airplanes that enthusiasts fly in my park on weekends, the mosquito-like whine disrupting my afternoon. At their most complex, they are associated with military activity and can be the size of a Boeing 737 and pack sophisticated communications, surveillance and weapons technology.
I am familiar with the use of drones in places like Afghanistan. But never having encountered any drones at King and Bay, I didn’t think this was a pressing issue in Toronto, or even Ontario.
Boy, was I wrong. First of all, drones are already in use in Ontario. And Saskatchewan and British Columbia. In fact, in 2007, the Kenora Police Service set a precedent when photographs of a homicide scene, taken from a UAV, were admitted as evidence in a trial for the first time. The Kenora police used a snappy little commercial number called the Draganflyer X6 made by, that’s right, a Canadian company.
Turns out we’re not only using them, we’re making them for a market that was US$6 billion in 2011, and expected to double in ten years.
Second, the IPC reports that are more than 220 UAV-related firms in Canada, with the sector supported by 38 postsecondary institutes and 60 government organizations that have an interest in UAVs. Feeling left out? That’s all right – for a mere US$ 330 at BestBuy, you can pick up the Parrot AR. Drone Quadricopter, which can be controlled using an iPhone or iPad and streams back live images from its camera. You, too, can upload realtime videos of your topless sunbathing neighbour to YouTube.
Paranoid yet? (if the answer is no, then see how artists at Ars Electronica Futurelab have used this device, and be truly amazed its nimble otherworldliness . You can run, but it’s pretty likely you won’t be able to hide).
The IPC raises some fascinating legal and privacy concerns. Drones have unique vantage points and offer greater image-gathering capacity than fixed surveillance, and can create sharper video images at greater distances, often with infrared and thermal imaging capability. Combined with facial recognition programs, drones can be used to continuously track individuals in public and private. This disconnected surveillance (never mind advanced capabilities to deliver or retrieve objects) creates some interesting legal dilemmas.
The more sophisticated technology becomes, the more likely that it will be capable of intruding upon a reasonable expectation of privacy – with the result that a warrant ought to be required. This is the IPC’s view, and it recommends that the use of drones by the state (including law enforcement) should require a warrant if it will involve “sustained surreptitious surveillance”. This is consistent with the Supreme Court of Canada ruling in R. v. Wise,  1 SCR 527 that held that the warrantless installation of a tracking device on a vehicle on a public roadway raises Charter concerns). The IPC is calling for greater public debate and consultation in Canada.
The IPC has also recommended in most applications of UAVs, it may be appropriate to have software loaded on to the device that obscures faces (which would seem to defeat the whole facial recognition point), particularly if the video stream is being recorded.
In addition, the IPC advocates federal amendments to Transport Canada aviation regulations to require drone operators to obtain a special flight operations certificate that would involve a privacy protection program (today, much like in the early days of the automobile, pretty much whoever can afford one can fly one).
In terms of private use of UAVs, the Court of Appeal recently created the tort of “intrusion upon seclusion” in Jones v. Tsige  ONCA 32. This would seem to open the door to some interesting drone-related lawsuits – for instance, do privacy interests and airspace intersect? Or is the air above my backyard considered public? Am I within my rights to shoot one of these things down? Just how close am I allowed to get to that police officer/movie star/nuclear reactor?
The report is only 30 pages and makes for some interesting reading, and even more interesting thinking.