R2K has submitted the following letter to the Chairperson of the Civil Aviation Regulations Committee, regarding proposed amendments to civil aviation regulations which would legalise the use of drones. As we write here, the regulations are currently silent on the need to protect the public against the massive potential for drones to be used in surveillance and invasions of privacy. The Committee is finalising the regulations this coming week.
Re: Proposed Amendments to Civil Aviation Regulations: Unmanned Aerial Vehicles (drones)
Attention: Chairperson of CARCom
23 January 2015
The Right2Know Campaign is a non-profit organisation committed to promoting laws, policies and practices that uphold and defend the information rights of all people living in South Africa.
While it was not possible for R2K to make a submission to the CAA by the prescribed deadline, R2K wishes to align itself with the earlier submission made by Professor Jane Duncan and Karen Jayes.
It is of great concern that the CAA’s draft regulations are almost entirely silent on the need for appropriate safeguards against drones’ capacity for surveillance and infringements on the right to privacy.
Section 14 of the Constitution of the Republic South Africa provides that:
14. Everyone has the right to privacy, which includes the right not to have –
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.
The huge potential for drones to violate this right means that CAA regulations need to go beyond the vague restriction found on page 34 that privately operated UAVs should observe statutory requirements relating to privacy.
Other than the obvious point that any safeguards against privacy infringements should apply to all UAVs, not only privately operated ones, the unique surveillance capabilities of UAVs require more rigorous regulation.
We wish to underscore that the point made in the Duncan/Jayes submission that CAA regulations should be redrafted in line with international proposals on drone regulation made by the American Civil Liberties Union and Electronic Frontier Foundation.
We also wish to emphasise that the regulations must be redrafted in line with the Protection of Personal Information Act.
We also wish to highlight that the draft regulations’ prohibition on piloting UAVs “adjacent to or above a nuclear power plant, prison, police station, crime scene, court of law, national key point or strategic installation” are problematic. It is not necessary to replicate the concerns raised in the Duncan/Jayes submission, except to emphasise that there is currently no public notice of sites that have been declared National Key Points or Strategic Installations. (While the Ministry of Police recently published a list of existing National Key Points, this was a once-off disclosure and any new National Key Points will be publicly declared.) There are currently an estimated 204 National Key Points and 248 Strategic Installations across South Africa.
This makes prohibited access to the sites a problem. Because of this lack of transparency regarding which sites are National Key Points or Strategic Installations, it is quite possible to contravene these regulations unwittingly.
We note that internationally there has been substantive debate on appropriate limitations of aerial surveillance, especially concerning the use of drones. This debate is still taking shape in South Africa. It is therefore vital that the CAA takes this early opportunity to put appropriate safeguards in place to protect and promote fundamental human rights.