Unmanned Aerial Vehicles: Emerging Policy and Regulatory Issues, George Cho

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EAP 1
Unmanned Aerial Vehicles: Emerging Policy and
Regulatory Issues
GEORGE CHO*
Abstract
Unmanned aerial vehicles (UAVs) provide a new and exciting platform for remote
sensing and other applications. However, the added technological capabilities have
produced policy and regulatory challenges. There is a need to understand the
technology and infrastructure in the context of national and international laws. This
contribution is an attempt to develop an understanding of the use of UAVs and their
policy and regulatory implications. The deployment of UAVs might be more
restricted and restrictive than at first envisaged. Such considerations as the sharing of
domestic airspace, air navigation rules, public safety and national security are
pertinent. There is a pressing need to address legal obligations and responsibilities
and related issues such as privacy rather than just be concerned with the technology.
Particular restrictions such as the export of the technology, the transmission of
geospatial data across borders and international agreements are as important.
Keywords: aviation safety; drones; legal challenges; pilotless aerial vehicles;
privacy; unmanned aerial systems (UAS); unmanned aerial vehicles (UAV)
Introduction
Unmanned aerial vehicles (UAVs) are a new and exciting technology. The
civilian uses of UAVs are many and varied including environmental
monitoring of fishing trawlers or whalers, crime fighting and traffic control,
checking of electricity cables and pipelines, surveying forests and crops, and
fire fighting purposes. However, in these applications the issues of safety,
privacy and ethics often become topics of debate even before the technology
is deployed. While regulations might limit the use of UAV for commercial
and civic purposes from a safety point of view, there have been limited
discussions about the privacy implications of its use. UAVs are part of the
continuing developments in photogrammetry from the early air photographs
captured by aircraft through to the use of satellites. UAVs continue the
pilotless tradition albeit with ground controllers aided by computer
algorithms. Fully autonomous UAVs may be some way off but may
eventually be developed.

*
Institute for Applied Ecology and Faculty of Education, Science, Technology and
Mathematics, University of Canberra, Canberra, ACT 2617, Australia; Email:
George.cho@canberra.edu.au; Tel: +61 262015650; Fax: +61 262012328.
Journal of Law, Information and Science Vol 22(2) 2012-2013
EAP 2
This contribution suggests a need to develop a deeper understanding of the
policy and regulatory environment in the use of unmanned aerial vehicles.
The technology for UAVs appears enticingly cheaper together with greater
control as to when and where to deploy the platform to obtain better quality
fine-grained data. But the use of UAVs might be more restricted and
restrictive than first envisaged, as there are other considerations, such as, the
sharing of domestic airspace within air navigation regulations, public safety
and national security.
This contribution aims to give a broad picture of the policy and regulatory
environment for the deployment and operation of UAVs. UAVs fill a unique
niche in remote sensing. The technology is a supplement to and not a
replacement of traditional remote sensing data gathering methods. The
integration of the use of both civilian and military UAVs in segregated
airspaces suggests the need for the development of some form of a shared
open skies policy. Users of such systems require certainty with the rules and
regulations of operating in this airspace. Among the legal issues posed by the
deployment of UAVs, privacy is identified as a lead issue that deserves
further exploration. Comparisons are made as to how this issue is being
addressed in the United Kingdom (UK), European Union (EU), United States
(US) and Australia. A discussion of the various issues of intellectual property
rights of the captured images, the transmission and cross-border flow of
geospatial data captured by UAVs and data protection is not addressed in
this paper as these merit separate treatment. While it is conceded that there is
an overlap between data protection and privacy, a detailed treatment could
arguably be the topic of a separate discussion and article.
The first part of this paper provides a background to UAVs as a platform
beginning with the myriad nomenclature to describe such vehicles. While the
descriptions have largely been based on its mass, increasingly there is a
distinction which is made in terms of its usage, whether military or civilian,
and whether for scientific research or for commercial purposes. The second
part addresses the policy and regulatory environment for UAVs; first in terms
of safety and regulation in domestic airspace, then in terms of privacy issues
followed by technical and operational issues and finally with export controls
of UAV technology. An extended analysis of the developments in the law
relating to privacy in the US and Australia with special reference to UAV
deployment is merited on the grounds of topicality and the challenges it
poses to law makers. Some technical and operational considerations are also
discussed in relation to restrictions on the export of the technology under the
Wassenaar Arrangement and the Missile Technology Control Regime (MTCR)
as well as the cross-border transmission of geospatial data under various
international agreements.
1
Some preliminary conclusions are made to help
draw the threads together to suggest that the mosaic of complexities are

1
Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods
and Technologies (2013) <http://www.wassenaar.org/index.htmland>; and Missile
Technology Control Regime (MTCR) (2013) <http://www.mtcr.info/>.
Unmanned Aerial Vehicles (UAVs): Emerging Policy and Regulatory Issues
EAP 3
interwoven. Pilotless aerial vehicles or remotely piloted vehicles (RPV) are
new, unique and different and therefore require distinctive solutions to the
problems and challenges of this new industry.
1 Background
1.1 Classification by types and characteristics of UAV
Unmanned aircraft systems (UASs) consist of the vehicle, payloads and
ground control stations. The sophistication of such systems depends largely
on their purpose and use. The platform for civilian uses may be characterised
by its size, flight endurance and other airborne capabilities.
2
A generally
accepted civilian classification, adapted from existing military descriptions of
the platforms, suggest six types of such vehicles: Micro (MAVs) or Nano
(NAVs) Aerial Vehicles; Vertical Take-off and Landing (VTOL); Low Altitude,
Short-Endurance (LASE), also as Small Unmanned Aircraft Systems (sUAS);
Low Altitude, Long-Endurance (LALE); Medium Altitude, Long-Endurance
(MALE); and High Altitude, Long-Endurance (HALE). A cursory survey of
the remote sensing literature demonstrates that often the data, the platforms
(including sensors and other equipment), are taken as a given and arguably
uncontroversial. Indeed the discussion of these platforms are often footnoted
rather than explored at length because the main purpose is the analysis,
manipulation and reporting of the results and findings from the data. Such
would be the case where UAVs have become ubiquitous. However, at the
present stage of development, UASs may be described as nascent.
Pilotless aerial vehicles (PAVs) and RPVs have acquired various names
including drones, unmanned or unpiloted aerial vehicle, pilotless aircraft,
uninhabited aircraft, and mini-satellite or small satellite. For present
purposes the terms unpiloted aerial vehicles, drone and UAV may be used
interchangeably to refer to the platform. Specific reference may be made to
distinguish different categories of UAVs according to characteristics such as
size, shape, form, speed, mass and other attributes. More generally the term
unmanned aircraft systems (UASs) has been used to refer to all the
components that make up this platform of which the vehicle is but one item.
Drones are unmanned but are piloted. Ground support from a distance
assists in navigation and general flight. Technically drones are not supposed
to be reused; the idea derived from its deployment during the first and
second World War as flying bombs. In the modern era the recycling of UAVs
have become commonplace as these vehicles are designed to return to base
unless they have been intercepted, damaged or destroyed in some way.
Drones have been so named because they have no mind of their own a

2
Adam C Watts, Vincent G Ambrosia and Everett A Hinkley, Unmanned Aircraft
Systems in Remote Sensing and Scientific Research: Classification and
Considerations of Use (2012) 4(6) Remote Sensing 1671, doi:10.3390/rs4061671.
EAP 4
robot with little independent decision-making capabilities. Modern UAVs are
more sophisticated with the ability to optimise flight paths, control speed,
multi-task, and carry various navigation, surveillance equipment and
weapons. Some of these types have developed to become unmanned combat
aerial vehicles (UCAVs). At the present stage of their development, these
attack drones have neither the independence to identify targets nor the
capability to launch weapons. The identification of targets and decision to
launch an attack is left to human operators some distance away. It has been
estimated that 19 staff are required to support each vehicles mission.
3

Reusable aircraft operated by humans from a distance have been in existence
from as early as the First World War. In the US, developers built and tested
the first robotic attack plane the Curtiss-Sperry Flying Bomb in 1917-1918
for example. Pilotless missiles were also a feature of the V1 Flying bombs or
doodlebugs of the Second World War.
4
The miniaturisation of electronics, in-
built light-weight digital cameras and other sensors provide additional
functions. These UAVs integrate global navigation satellite systems (GNSS)
with inertial navigation and other surveying equipment. With the coming of
age of autonomous vehicles, predictions have been made of the growing
market for photogrammetric images of the natural environment, the
inspection of tall structures, general surveillance and border security. The
estimate for the global military drone market alone is close to US$5.9 billion in
2012.
5
However, the question is whether the predicted developments can take
place in the civilian market without the requisite policy, regulatory and
industry support mechanisms in place. There is a need to explore these
possibilities.
While high levels of skill and inventiveness may be required in supporting
UASs, there have been policy and regulatory restrictions to the more rapid
development and evolution of the unmanned aerial vehicle industry. In a
later part of this paper, an examination is made of what these are and how
these may act as barriers that impede UAS development. As a general
observation it is postulated that much of the operational standards and
legislative requirements are unarticulated, remain fuzzy in concept and
implementation, and have no comparative international benchmarks. This
hypothesis is explored in a later section below.

3
Steven Aftergood, Greater Autonomy for Unmanned Military Systems Urged on
Secrecy News (6 September 2012)
<http://blogs.fas.org/secrecy/2012/09/dsb_autonomy/>.
4
M Hardy, Unmanning the War on Terror: Attack of the Drones on The
Conversation (2 May 2012) <http://theconversation.edu.au/unmanning-the-war-
on-terror-attack-of-the-drones-6806/>.
5
C Stewart, Drones, Lives and Liberties: As Civilian Use of Unmanned Aerial
Vehicles Grows, So Too Does the Risk to Our Privacy, The Australian (Sydney) 1
March 2012, 11.
EAP 5
In terms of common use nomenclature, a comparison of the different types of
UAVs are summarised in Table 1 below. The terminology may already have
introduced some confusion. For present purposes, the simpler reference to
micro- and mini-UAVs is preferred. The reason is that when the so-called
military drone or the remote pilotless aerial system (RPAS) is included, the
order of magnitude assumes exponential proportions. Military drones tend to
be much bigger in size, have an enlarged scale of operations, carry heavier
payloads, and travel at higher speeds.
Table 1 suggests the diversity and differences in the nomenclature in the
rudimentary classification system for UAVs. The first observation from the
table is the reference to the term satellites, small aircraft and light UAVs. The
references are further distinguished as to whether these are micro- or mini-
satellites. Generally, the distinction is that of mass of the vehicle and its
deployment. Micro- and mini-satellites are the smallest of the vehicles and
generally fly below 300 m. Designs have focused on creating UAVs that can
operate in urban canyons or inside buildings, flying along hallways, carrying
listening and recording devices, transmitters or miniature video cameras. If
nothing else, the diminutive size provides vast opportunities and applications
in the civilian sphere. The US Defense Advanced Research Projects Agency
(DARPA) criteria for micro-UAVs include a size of less than 15 cm, a mass of
100 g or less, a payload of 100 g, a range of 1-10 km, endurance of 60 mins at
an altitude of less than 150 m flying at 15 m/s.
6

A second observation is that local and national regulations govern use and
operations where the mass of the vehicle is less than 150 kg. In the UK, US,
and Australia these types of vehicles are considered model aircraft for want
of a better descriptive term. This apparent lack of precision in the definition is
because the requirement for certification or otherwise depends on the level of
autonomy of operating the UAV and the purposes for which the UAV is
flown.
Thirdly, the table also depicts information on tactical UAVs that include
special task UAVs and strategic UAVs. Tactical UAVs are heavier platforms
of up to 1,500 kg with six sub-categories depending on the range, altitude and
endurance. For example, one sub-class is that of decoy UAVs that weigh up to
250 kg used for special military operations. In general, there is a lack of
satellite communication systems because weight and payload restrictions
place limits on the distance and range these vehicles may operate. An
example is the MALE UAV known as the MQ-1B Predator. The MQ-1B
Predator has sensors in its bulbous nose cone, on-board colour and black and
white video cameras, image intensifiers, radar, infrared imagery for low light
conditions, lasers for targeting and laser-guided missiles. With a cruise speed
of between 135217 kph, a payload of 204 kg and two Hellfire missiles the

6
D J Pines and F Bohorquez, Challenges facing future micro air vehicle
development (2006) 43(2) American Institute of Aeronautics and Astronautics Journal
of Aircraft 290.
EAP 6
cost of maintaining such a system, inclusive of four aircraft, a ground control
station with a satellite link, has been estimated at USD$20 m.
7

Strategic UAVs, on the other hand, operate at higher altitudes and have
heavier platforms with longer range and endurance. HALE vehicles can
weigh between 250012 500 kg with a maximum flight altitude of about 20
000 m. These UAVs are highly automated with constant ground control
station monitoring. The famed Northrop Grumman UAV Global Hawk boasts
an endurance of 35 hours. There are also non-military HALE, such as the solar
powered Helios developed by Aerovironment and operated by NASA, for
Earth Observation (EO) missions.
One often-overlooked class of UAV is the vertical take-off and landing
(VTOL) vehicle. These rotary wing vehicles have a range of weights and
configurations. VTOL vehicles are capable of hovering over specific sites and
can fly at low altitudes. Civilian and commercial applications include
surveillance and reconnaissance.
In general, the smallest class of UAV is more often used for civilian
applications while larger strategic UAVs are mostly used in military missions.
Cost is a major consideration. For example, the MQ-1B Predators operational
parameters may rule out its deployment for civilian use given that other less
costly means may be available. In addition, the suggested classification
scheme depicted in Table 1 uses mass as a surrogate measure to rank these
vehicles in order of size. It has been suggested that both in theory and practice,
a more accurate classification schema is to calculate the kinetic energy impact
levels of the UAV. The index for any aircraft may be easily computed and can
be used as a criterion to classify such aerial vehicles. Impact kinetic energy is
the ability of an aerial vehicle to cause damage and injury. It provides both an
absolute measure and a relative standard for identifying equivalence with
model aircraft. It is an all-encompassing criterion applicable to all aircraft type,
is easy to determine and can be readily estimated during the design process.
8

7
Editorial, Drones: What are they and how do they work?, BBC News (online), 31
January 2012 <http://www.bbc.co.uk/news/world-south-asia-10713898>.
8
D R Haddon and C J Whittaker, UK-CAA policy for light UAV Systems (2004)
<http://www.caa.co.uk/docs/1995/srg_str_00002-01-180604.pdf>.
EAP 7
Table 1: Unmanned aerial vehicles: a proposed classification schema*

* Source: European Unmanned Vehicle Systems Association (EuroUVS) (2006) UAV
System Products and Models: All UAV Systems Referenced.
Weight
classification
group
Civilian
category
Wet mass
(incl. fuel)
kg
Regulations
Broad
Military
Equivalent
Notes and
Systems
1
Molecular/femto
satellites molesat
0.001 0.1 ? ?
Launched to fly
in an asterism
pattern, known
collectively as a
constellation
1
Pico satellites
picosat
0.1 1.0 ? ?
Fly in formation
as a swarm from
mother satellite
Black Widow
MicroStar
1
Nano satellites
nanosat
1 - 10 ? ? ?
1 Small aircraft 0 - 20 National CAA
Micro (<20
kg)
Mini (<30 kg)
?
2 Light UAV >20 - <150 Civil
Tactical UAV
Close range
Phantom,
Mikado
2
Micro small
satellites
>10 - <100 Civil
Tactical UAV
Short range
(<200 kg)
Luna, Silver
Fox, Firebird,
Photo,
Goldeneye
3 UAV >150 EASA Tactical UAV
3
Mini small
satellites
>150 - <500 ?
Short range
(<200 kg)
Medium
range (150-
500 kg)
Hunter,
Aerostar,
Sniper, Falco
3?
Special Task
UAV
250
250
Military
Lethal

Decoys
MALI, Harpy,
Lark, Marula
Flyrt, MALD,
Nulka, ITALD
4? Tactical UAV 500 1,500 Military
Endurance
range
Aerosonde,
Vulture II Exp
4? Tactical UAV
1,000
1,500
Military
Medium
altitude long
endurance
MALE
Skyforce,
Hermes 1500,
Heron TP
4? Strategic UAV
2,500
12,500
Military
High altitude
long
endurance
HALE
Global Hawk,
Raptor, Condor,
Theseus
Notes: ? = unknown or indeterminate; CAA Civil Aviation Authority (UK), EASA European
Aviation Safety Agency (EU).
EAP 8
1.2 The use of space
1.2.1 Outer Space
A number of transnational conventions, agreements and treaties govern the
international and cooperative use of outer space and deployment of large
satellites. These agreements govern the management and operation of EO
vehicles. EO refers specifically to the active monitoring of the Earth from an
orbit in space using satellites. This reference excludes aerial photography or
EO performed by other instruments carried on-board aircraft. The satellites
are deployed on missions such as mapping, environmental monitoring, and
climate and weather observations.
9
The last half of the 20
th
century has been
accompanied in the so-called space age by developments in international law
and cooperation. Five multilateral treaties and five resolutions and
declarations sponsored by the United Nations (UN), and, more specifically,
the UN Committee on the Peaceful Uses of Outer Space (COPUOS) is
evidence of this cooperation. The treaties deal with the exploration and use of
outer space, the rescue of astronauts, and damage and activities in outer space.
The declarations, on the other hand, address legal principles of these activities,
including principles governing broadcasting from space, remote sensing,
nuclear power sources and international cooperation in the exploration and
use of outer space. It seems that no other dimension of human activity, with
the exception of the use of the frozen Arctic and Antarctic regions, has been so
well shadowed by international cooperation and legal development as those
relating to the use, occupation and travel through space.
10

1.2.2 Troposphere
Closer to Earth, however, the practical and useable airspace is the troposphere
beginning at the surface of the Earth and extending upwards between 9 km at
the poles and 17 km at the equator. Any airspace is that portion of the
atmosphere controlled by a country above its territory, including its territorial
waters and generally, any specific three-dimensional portion of the
atmosphere. To systematise the use of such airspace the International Civil
Aviation Organization (ICAO) has classified the worlds navigable airspace
into three-dimensional segments, each of a specific class. Generally, the
classes are controlled and uncontrolled airspace; and whether or not there is a
need for air traffic control (ATC) oversight based on air navigation flight rules
visual, instrument and special. Most nations adhere to the classification
specified although they might use only some of the classes and significantly
alter the exact rules and requirements for their own national purposes. In

9
R Harris, Earth Observation Data Policy (John Wiley & Sons, 1997) 8.
10
United Nations, The Principles Relating to Remote Sensing of the Earth from Outer
Space (3 December 1986), A/RES/41/65; and George Cho, Overview of Legal
Issues in Matxalen Snchez Aranzamendi, Rainer Sandau and Kai-Uwe Schrogl
(eds), Current Legal Issues for Satellite Earth Observation, ESPI Report 25 (European
Space Policy Institute) 36 - 60.
EAP 9
addition, individual nations may also designate Special Use Airspace with
further rules because of national security or safety.
By convention, international law prescribes a countrys sovereign airspace as
being 12 nautical miles (22.2 km) into space from a nations territory. Airspace
not within any countrys territorial limit is considered international,
analogous to the high seas in maritime law. However, by international
agreement, a country may assume responsibility for controlling parts of
international airspace, such as those presently exercised over the oceans. For
instance, the US provides air traffic control services over a large part of the
Pacific Ocean, even though this is international airspace.
Given the diversity of uses and developments in the UAV market in different
jurisdictions, the international legal environment may be fragmentary and the
extant international rules and principles may be ill-defined and subject to
interpretation. Regulations appear to be confined to particular jurisdictions, to
certain forms of activities, and to certain natural or legal persons. An
examination of the regulatory principles and current legal frameworks may
therefore be necessary for a better understanding of the environment that
UAVs operate within.
2 Policy and Regulatory Environment for UAVs
The European Defence Agency has observed that there will be a need for
public awareness of the benefits of UAVs concomitant with a political
understanding of the potential use of such technology because of the
significant economic, technological and industrial impacts.
11

International rules and conventions for civil aviation are relevant to the
present discussion. The Chicago Convention of 1944 specifically mentions the
notion of a pilotless aircraft (Art 8). Article 3 stipulates that the Convention is
applicable only to civil aircraft but not to state aircraft. State aircraft include
UAVs in military, border protection and police services. Such aircraft require
authorisation by special agreement before they can fly over the territory of
another state. Article 8 further stipulates special authorisation by the state
over-flown by an unmanned aerial vehicle.
12

The beneficent uses of UAVs include the provision of rescue services in crises
and disasters. The so-called disaster drones that work as teams to help in a
crisis may be exemplified by the Orchid Project. During the earthquake in
Haiti in 2010, it was suggested that the key to successful rescue operations

11
European Defence Agency, European Commission UAS Panel: 5th Workshop on
Research and Development, Discussion Paper (9 February 2012)
<http://www.eda.europa.eu/docs/documents/UAS_RD_workshop_DiscussionP
aper_final_1.pdf>.
12
Chicago Convention on International Civil Aviation, opened for signature 7 December
1944, 15 UNTS 295 (entered into force 4 April 1947).
EAP 10
was the coordination between humans and intelligent machines.
13
In
emergencies, first responders on the ground may have difficulty in making
decisions of a localised nature that could have global impacts. It is likely that
autonomous flying vehicles could help improve situational awareness. The
study suggested that this extra assistance could have led to intelligent and a
more strategic allocation of tasks and resources and a better outcome for those
involved in the natural disaster.
2.1 Safety and regulation in domestic airspace
Safety considerations have been uppermost in the minds of aviation
authorities when deciding whether to permit UAV access to domestic
airspace. In the European context, the scope and definition of how the UAV
might operate in that space may require a seamless and harmonised
regulatory framework on top of a civilian regulatory support infrastructure to
ensure compliance. The UAV would have to operate within the European Air
Traffic Management System (ATMS) if the goal of a Single European Sky
(SES) is to be realised. However, the present regulatory approach within the
European Union (EU) is fragmentary and there might be a need for some
political guidance and a shared EU vision.
A European Commission UAS Panel identified the present segregated
airspace among member states as a hindrance. The Panel had observed that
synergies exist beyond and across traditional civilian, military and
government structures. Such an ideal would enable the development of
European technologies and standards to support market and regulatory
requirements and promote a common harmonised European and
subsequently an international regulatory framework for these vehicles.
14

In the US and Australia, the limiting factor in the use of UAVs in domestic
skies is that of permissions from the Federal Aviation Authority (FAA)
and Civil Aviation and Safety Authority (CASA) respectively. Such
permissions are necessary to ensure safety and to react in the unforeseen
event of a technical failure of an unmanned aerial vehicle. In the EU, the
European Aviation Safety Agency (EASA) performs similar functions.
However, aviation authorities remain anxious about the general introduction
of UAVs into national airspace because of operational, technical and safety
considerations.
One major safety concern of operating UAVs is the level of autonomy that
might technologically be feasible. The lack of a detect and avoid system on

13
Dougal Shaw, Disaster Drones: How Robot Teams can Help in a Crisis (23 July 2012)
BBC News Technology <http://www.bbc.co.uk/news/technology-18581883>.
14
European Defence Agency, above n 11; See also K Dalamagkidis, K P Valaranis
and L A Piegl, On Integrating Unmanned Aircraft Systems into the National Airspace
System: Issues, Challenges, Operational Restrictions, Certification and Recommendations,
(Springer, 2009).
EAP 11
board UAVs is considered a major obstacle to the use of UAVs in civil
aviation. A consortium of companies led by BAE Systems in the UK has
obtained research funding to demonstrate that civilian UAV may safely share
the skies with other users. The key technology that is currently missing is the
detect and avoid system for civilian drones. Such a system may be designed
to automatically steer the pilotless aircraft away from other aircraft and to
crash land in a safe area if necessary.
15
The safety of autonomous UAV flight
necessarily becomes a legal question in terms of the degree of flight control
UAV computers are be permitted to have and where legal liability might
reside.
16

While European manufacturers of UAVs have made significant progress in
critical technologies and systems integration, the industry is still in its infancy.
It is probable that there is a need for significant investments and incentives to
support the development of a truly European UAV market and to become
globally competitive. The opportunities for R&D for European UAV
manufacturers are believed to probably lie in the aerospace, defence and
security sectors together with the implementation of break-through
innovative technologies. Arguably, these may be beyond reach without the
necessary regulatory support infrastructure for the EU as a whole.
17

A further policy issue everywhere is the ban on the commercial use of UAVs
as cargo carriers because of safety concerns. The regulatory challenge for
operating UAVs has always been the need to demonstrate an equivalent level
of safety compared to human piloted aircraft. Furthermore, UAVs need to be
operated in compliance with existing aviation legislation. The paramount
consideration is how to accommodate UAVs and at the same time ensure that
these vehicles are safely separated from other users of the airspace.
The International Civil Aviation Organisation (ICAO) issued a Circular on
Unmanned Aircraft Systems (UAS) in 2011 to apprise states of the emerging
ICAO perspective on the integration of UAS into non-segregated airspace and
at aerodromes. The circular also asked states to consider the fundamental
differences from manned aviation the integration would involve and sought
to encourage states to help with the development of ICAO policy on UAS by
providing information on their own experiences associated with these
aircraft.
18

15
J Reed, The Skies Open up for Large Civilian Drones (30 August 2012) BBC News
Technology <http://www.bbc.com/news/technology-19397816>.
16
M Nas, Pilots by Proxy: Legal Issues Raised by the Development of Unmanned Aerial
Vehicles (2006) Unmanned Aircraft Technology Applications Research, 25
<http://www.uatar.com/LegalPaper on UAVs.pdf>.
17
European Defence Agency, above n 11.
18
ICAO, Unmanned Aircraft Systems (UAS) (Cir 328 AN/190, Montreal, Quebec,
Canada, 2011) Also at
<http://www.icao.int/Meetings/UAS/Documents/Circular%20328_en.pdf>.
EAP 12
ICAO has also required member nations to develop a State Safety Program.
On 8 February 2011, Australia published its State Aviation Safety Program.
This document sets out the management of aviation safety in Australia, with a
focus on safety systems. It provides a framework for the continuous
improvement of aviation safety by clearly establishing how the various
elements of Australias safety system work together. The four key
components of the program include: policy and objectives, risk management,
safety assurance, and safety promotion. At the core of the program is the
requirement for safety management systems in the aviation industry so as to
deliver a better safety culture and continuing improvements in safety.
19

2.1.1 European Union
The EU Parliament has been debating how best to ensure a regulatory
framework that enables the wider use of UAVs by civilians. Any discussion of
the regulation of civilian UAVs in Europe cannot avoid referring to the
seminal report of a taskforce set up by the European Joint Aviation
Authorities (JAA) and the European Organisation for Safety of Air
Navigation (Eurocontrol) in 2002. The influential taskforce report outlined the
requirements for the development of a concept for regulating civilian UAV
in Europe.
20
Concept here refers to the set of principles and guidelines for
the development of such regulations but not the regulations themselves. The
document identified five pillars including safety, security, airworthiness,
operational approvals, maintenance and licensing. This taskforce did not
address military UAVs. The report has been under consideration by the ICAO
and EASA.
A key finding of the eight-part taskforce report is that the non-existence of
regulations is a major obstacle to future development in European UAVs. The
report identified three categories that have promising market entry for
civilian applications. The applications include technology-, platform- and
service-induced applications. Technology-induced categories are the enabling
equipment on the UAVs for visual inspection, permissible payloads and
miniaturisation of functional equipment. Platform-induced applications on
UAVs encompass dedicated infrastructure monitoring of pipelines and power
lines whereas service-induced applications include activities of high altitude
geostationary UAV satellites with extended capabilities. The major
impediments to a flourishing UAV industry in Europe revolves around the
lack of access to airspace, difficulties of obtaining liability insurance,

19
Australian Government, Department of Infrastructure and Transport, Australias
State Aviation Safety Program (April, 2012) 38; See also Civil Aviation and Safety
Authority (CASA), Australias State Safety Program
<http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD::pc=PC_100396>.
20
Joint Aviation Authorities (JAA), UAV Task-Force Final Report: A Concept for
European Regulations for Civil Unmanned Aerial Vehicles (UAVs) (11 May 2004)
<http://www.easa.europa.eu/rulemaking/docs/npa/2005/NPA_16_2005_Appe
ndix.pdf>.
EAP 13
uncertainty of secure and stable radio frequencies and the availability of
cheaper manned aircraft options.
Aviation has always been highly regulated from the beginning given that the
UAVs could become powerful weapons of war and could easily violate the
sovereignty of states. Safety is perceived to be a shared responsibility among
the authorities, the operators, manufacturers and aircraft crew. Similarly, in
this context the international regulatory environment for UAVs consists of
general aviation conventions on safe aviation, unlawful acts, over-flights of
aircraft and sovereignty, airworthiness, registration and nationality marks.
The taskforce report promoted the regulation of civil certification and
operation of all types and categories of UAVs within the jurisdiction of the
EASA. The exceptions were those that pertained to missiles, military and
experimental vehicles. An interesting feature is that light UAVs, those with a
mass of less than 150 kg, were exempt from regulation by the EASA. The
report recommended that national aviation authorities regulate this class of
light UAV, similar to those regulations covering model aircraft. The reason
was that such activity required minimal airworthiness standards. The
regulations emphasise safety considerations, such as when and where to fly.
Extensive technical reports are contained in 21 topics that range from the legal
framework for the vehicles airworthiness certification through to emergency
recovery, communication links and human-machine interface and security.
Annex 1 of the report is instructive as it observed that the routine operations
of Civil UAV Systems are likely to be severely restricted in the short-term
until a number of significant technical problems have been resolved (eg the
provision of an adequate Sense and Avoid capability.
21

2.1.2 United Kingdom
In May 2002, the UK policy for UAVs was published as CAP722 for the
certification and operation of both civilian and military UAVs. The principles
governing this policy includes the need for the system to be certificated to a
code of airworthiness together with certification of organisations involved in
the design, manufacture, maintenance or operation of civilian UAVs.
22
In
concert with EASA requirements, the regulations apply to UASs lighter than
150 kg. The regulations vest airworthiness and operations responsibilities
with the national aviation authority CAA. The UK Light UAV Systems Policy
ensures safety standards. Exemptions to UK national regulations may be
granted to civilian operators who can demonstrate compliance with the policy
and show equivalence in terms of safety risk to existing model aircraft.

21
Ibid Annex 1, 1.
22
Civil Aviation Authority, CAP 722: Unmanned Aerial Vehicles Operations in UK
Airspace Guidance (10 August 2012)
<http://www.caa.co.uk/docs/33/CAP722.pdf>.
EAP 14
JAA/Eurocontrol has accepted the policy as a basis for the regulation of light
UAS within the EU.
23

In the UK the regulation of UAVs is based on model aircraft regulation
templates. There is however one exception. Whereas model aircraft
enthusiasts have an organised presence, there is no similar association for
UAVs. A model aircraft association is the accredited body that assesses
technical standards, makes recommendations to the CAA and develops codes
of practice.
24
In the UK the CAA has accredited the Large Model Association
(LMA) to provide accreditation to operators and builders as the organisation
that has expertise in the field. LMA oversight includes an assessment of the
suitability and integrity of the design and construction, functional flight trials
and reliability trials as well as operational control of UAVs. Following an
assessment, the LMA then makes recommendations to the CAA for further
action. However, the LMA has adopted a policy that it is there for the benefit
of recreational model aircraft enthusiasts and as such will not support
commercial UASs. The equivalent Australian CASA-approved association is
the Model Aeronautical Association of Australia (MAAA), which performs a
similar assessment role.
25

The CAA eligibility criteria for any UAS for commercial operations include
vehicular and operational requirements. Before a UAS is eligible for
commercial operation certification, the UAV should have a maximum impact
kinetic energy not exceeding 95 KJ
26
a maximum take-off mass below 150 kg
and a maximum sustained speed in level flight slower than 70 kts (130 kph).
The line-of-sight operation is not to exceed 500 m from the unmanned aerial
vehicle pilot and at a height not exceeding 122 m (400 ft) above ground level.
UAVs under 7 kg mass fall within the Small Aircraft definition of the Air
Navigation Orders and are thus exempt from the regulatory provisions.
27

2.1.3 United States
In the US, UAVs have a military heritage and there has been a long history of
a fascination with this technology. The Academy of Model Aeronautics
(AMAe), established by model aviation enthusiasts in 1936, has played an
important role in setting up voluntary standards for the operation of model
aircraft. The standards require flying model aircraft below 400 feet (122 m),
flying model aircraft away from populated areas and segregated from larger
aircraft. Different use and purpose distinguish model aircraft from UAVs. The

23
JAA, above n 20.
24
Haddon and Whittaker, above n 8.
25
Model Aeronautical Association of Australia, MAAA Manual of Procedure (February,
2012) <http://www.maaa.asn.au/maaa/mop.html>.
26
Haddon and Whittaker, above n 8.
27
Civil Aviation Authority (UK), Air Navigation Order 2000 (2000) (as amended) as
CAP393 <http://www.caa.co.uk/docs/33/CAP393.pdf>.
EAP 15
FAA has used three categories based on mass to classify such vehicles
cruise missile, model aircraft, and unmanned spacecraft.
Under USC 40103(a)(1) (Sovereignty and use of airspace) the federal
government has exclusive sovereignty and use over domestic airspace. The
FAA is tasked with developing plans and policies for US airspace under 49
USC 40103(b)(1). As a result, there is a significant limitation on the legal
competency of state and local governments from promulgating laws,
regulations or ordinances affecting access to the national airspace. There is,
however, uncertainty as to whether state and local governments have powers
to restrict or regulate the use of UAVs, including limitations on noise levels
generated by these craft over any state.
While UAVs feature prominently in Vision 100 arising from the Century of
Aviation Reauthorization Act,
28
progress towards attaining the goal has been
slow. In 2007, the FAA declared that there were to be no UAVs in the
National Airspace System (NAS) without specific authority. The present
approval is in the form of a Certificate of Waiver or Authorization (COA) that
regulates small-unmanned aircraft.
The FAA Modernization and Reform Act of 2012
29
Congress has tasked the
Federal Aviation Administration (FAA) with integrating UAVs into the NAS
by September 2015. While safety is a predominant concern, there is however,
a failure to address significant and largely unanswered legal questions. The
FMRA includes the development of an integration plan for UAVs, test sites
for UAVs, a simplified process for issuing authorisations, the development of
operational and certification requirements, and exemptions for craft weighing
55 pounds (25 kg) or less flown within visual-line-of-sight that are strictly for
hobby or recreational purposes. Under this law the US Secretary of Transport
and the FAA will draft plans, standards and rules to ensure that UAVs are
integrated into national airspace in a safe and legal manner by 2015. The
ultimate goal is to enable unmanned aerial vehicle operators to file and fly
their vehicles with minimal operational restrictions.
Other domestic integration issues include safety concerns, sensing and
avoiding other air traffic, mitigating risks to persons and property on the
ground, operator training and qualifications and addressing potential security
risks. An exposure to legal liability presents greater challenges to people and
property in equal measure with operator training and certification. While
voluntary industry codes of conduct for vehicle operations may be a means to
alleviate such anxieties, legal liability predicated on loss, injury and damage
may have to be developed similar to those protections accorded in civil and

28
Vision 100 Century of Aviation Reauthorization Act 2003, Pub L No 108-176, 117 Stat
2567 (2003).
29
FAA Modernization and Reform Act of 2012 (FMRA), Pub L No 112-95, 126 Stat 11
(Feb 2012).
EAP 16
common law provisions for motor vehicles.
30
The potential border security
and homeland protection risks posed by UAV, on the other hand, are far
greater. These risks may have part-civilian and part-military considerations.
Attaching weapons to UAVs, unauthorised entry into control systems
(hacking) and signal jamming of radio frequencies, the availability of radio
frequency spectrum, responsibility for border and national security issues and
airspace restrictions may all require separate and specific regulations.
31

2.1.4 Australia
In Australia, the regulations governing UASs, first drafted in 2001 in
anticipation of civil operations, are the Civil Aviation Safety Regulations
(CASR) Part 101. Being the first jurisdiction to attempt a regulation of UASs,
there was little operational experience to draw upon and consequently there
were limited detail relating to pilot qualifications, risk management,
airworthiness operational approval processes and legal liability risks. The
regulations provide a basis for CASA oversight but with minimal guidance to
industry.
Each application for any UAS mission in Australia is considered on a case-by-
case basis by CASA, and requires significant briefings by applicants. This
process may have the perverse effect of introducing inconsistent responses to
specific issues. The growth in UAS activities and demand for CASA
approvals for a range of operations from humanitarian, law enforcement,
security and commercial activities puts further pressure on CASA and
increases the possibility of inconsistent decisions.
The revised CASR Part 101 now consolidates rules governing all unmanned
aeronautical flights into one regulation. The revisions prescribe the rules for
the use of unmanned moored balloons and kites, unmanned free balloons,
unmanned rockets, UAVs, model aircraft, and pyrotechnic displays. The
regulations classify UAVs as either micro-, small or large with separate rules
applicable to each category. Micro-UAVs are exempt from regulation. An
unqualified person, that is, a person without a private pilots licence for
instance, may fly micro- or small UAV. Large UAVs, on the other hand, are
considered to be a de-facto piloted aircraft and must generally be certified and
registered and its controllers appropriately trained and qualified.
32
The legal
responsibilities for pilots and manufacturers of large UAVs are similar.
However, whether the legal liability, arising from an unmanned aerial vehicle

30
Association for Unmanned Vehicle Systems International (AUVSI), Unmanned
Aircraft System Operations Industry Code of Conduct (2012)
<http://www.auvsi.org/conduct>.
31
B Elias, Pilotless Drones: Background and Considerations for Congress Regarding
Unmanned Aircraft Operations in the National Airspace System (10 September 2012)
<http://fas.org/sgp/crs/natsec/R42718.pdf>.
32
CASA, CASR Part 101, Unmanned aircraft and rocket operations (2001)
<http://www.casa.gov.au/scripts/nc.dll?WCMS:PWA::pc=PARTS101>.
EAP 17
collision, is assessed as either strict or absolute liability, is probably too
premature a question to contemplate. It is arguable that domestic tort law
may point towards strict liability for unmanned aerial vehicle pilots and
manufacturers similar to those for commercial aviation.
As noted, the regulations for model aircraft in the past are determined on a
case-by-case basis and subject to certain operating constraints. Some model
aircraft have operated commercially by performing aerial tasks effectively
operating as UAVs. However, with the increased number and deployment of
sophisticated UAVs, this determination on a case-by-case basis may become
inefficient and impractical.
In summary, the challenges for an international regulatory regime are three-
fold. First, that civilian UAVs operating anywhere should demonstrate an
equivalent scale and level of safety to any aircraft operation, including size of
the craft, duration, altitude, noise, spatial reach and geographical area of
operations. Second, that civilian UAVs must operate in compliance with air
navigation rules and regulations of a jurisdiction. Third, that UAVs are
operated and integrated transparently with other civilian and military
airspace users.
33
The development of national regulations must proceed in
tandem. Here some kind of harmonisation of international standards and
regulations between say, FAA, EASA, CAA and CASA could be developed.
Having met operational and certification standards in any jurisdiction, the
unmanned aerial vehicle industry might be able to develop for any market.
2.2 Privacy
One notable problem with the development of a policy framework for UAVs
is how to adequately address the potentially intrusive nature of UAVs in
civilian environments. There is opposition from privacy advocates who see
the potential use of UAVs in covert surveillance operations as leading to the
erosion of privacy. Campaigners against the use of UAVs equate surveillance
with intrusiveness and ultimately the loss of privacy. For many governments
and citizens, privacy is a serious social and policy issue that will require
deeper analysis and more debate before the use of UAVs in the skies becomes
commonplace. However, the shape and response of such policy concerns
need to be examined in the light of the legal framework.
Ryan Calo suggested that while there is a perception that the widespread use
of UAVs for surveillance may erode the privacy of citizens, the opposite
might happen. UAVs could be the visceral jolt that society needs to drag

33
P Narayan, P Wu and D Campbell, Unmanning UAVs Addressing Challenges in
On-Board Planning and Decision Making in Francois Legras (ed), First
International Conference on Humans Operating Unmanned Systems HUMOUS'08, (3-4
September 2008, Brest, France) <http://conferences.telecom-
bretagne.eu/data/humous08/proceedings/16-campbell08humous.pdf>; See also
JAA, above n 20.
EAP 18
privacy law into the 21
st
century and help re-conceptualise the mental model
of privacy violations.
34
The erosion of privacy has always been at the
forefront of thinking when UAV technology is deployed. In the US neither the
Constitution nor the common law, overtly prohibit the police, media or
anyone else from operating surveillance UAVs. The more general question is
whether in law citizens have a reasonable expectation of privacy in a public
place? This fundamental question is first addressed generally, and then more
particularly in the specific context of developments in US jurisprudence.
2.2.1 UAVs and privacy in general
The FAA, as custodian of air safety navigation, has thus far prohibited the use
of UAVs for commercial purposes. However, the FAA is conscious of the
need to examine privacy implications when proposals for opening up the
skies to UAV for commercial purposes become operational under the FMRA
by 2015. The American Council of Civil Liberties (ACLU) has opined that the
use of UAVs raise very serious privacy issues and are pushing America
willy-nilly toward an era of aerial surveillance without any steps to protect
the traditional privacy that Americans have always enjoyed and expected.
35

The ACLU further claims that privacy laws are not sufficiently robust to
ensure that the new technology is used responsibly and consistently with
democratic values.
While UAVs increase the potential for surveillance of political protests and
private activities there is equally the potential for misuse of the technology. In
order to enhance the protection of the privacy of communities, clear and
accountable procedures will be needed.
36
The Australian Council of Civil
Liberties has called on the Australian government to urgently deal with the
privacy issues associated with UAVs. Regulations governing civilian UAVs
have seemingly not kept pace with the rapid growth of the industry in
Australia and overseas.
37

UAVs are far stealthier and more sophisticated than other means of
surveillance and can accomplish this task with a much greater range than say,
helicopters. With proper equipment, UAVs can intercept communications,
peer through windows and, in the not too distant future, they will possess

34
M R Calo, The Drone as Privacy Catalyst (12 December 2011) 64 Stanford Law
Review Online 29 <http://www.stanfordlawreview.org/online/drone-privacy-
catalyst/>.
35
American Civil Liberties Union (ACLU), Protecting privacy from aerial surveillance:
Recommendations for government use of drone aircraft (2011)
<http://www.aclu.org/technology-and-liberty/report-protecting-privacy-aerial-
surveillance-recommendations-government-use/>.
36
G Downie, Drones, with adequate safeguards, should add to our safety, The
Canberra Times, (Canberra) 10 June 2012, 22.
37
C Stewart, Drones, lives and liberties, The Australian (Sydney) 1 March 2012, 11.
EAP 19
facial recognition technology. The potential for violations of civil liberties is
indeed significant.
Earth Observation satellite cameras and sensors capture everything in their
wake as they circle the globe. Advertent or otherwise, all activities on the
ground are captured on a regular and cyclical basis. When analysed and
combined with other spatial and thematic data, the images and information
assume new dimensions. It may also be possible to deploy instruments and
cameras with facial recognition capabilities. In these instances, the thought in
many peoples minds is the loss of privacy and the intrusiveness of the
technology. Whereas in the past, intrusion required physically traversing
social and property boundaries, the advent of aerial surveillance technology
obviates such needs.
The US Air Force (USAF) policy permits the incidental capture of domestic
imagery by UAVs. However, the policy would not ordinarily allow the
targeted surveillance of a US citizen unless explicitly approved by the
Secretary of Defence consistent with US law and regulations. Valid criteria for
capturing domestic imagery by the USAF includes surveillance of natural
disasters, environmental studies, systems testing and training and counter-
intelligence and security relating to vulnerable assets.
38

In Europe, satellite images and aerial photographs have been used to monitor
farming activity. This is to ensure that the Common Agriculture Policy (CAP)
rules are followed. The use of this technology is not only cost effective, but
also speedy and lifts the burden from farmers. In 2010, nearly 70 per cent of
the total required controls on farm payments in Europe were accomplished by
using satellite technology. While fallible, the potential use of UAVs is evident
even in those countries where rugged geography hampers easy satellite
monitoring. However, the lobby group Statewatch alleges that the EU is
rushing to use UAVs without sufficient public discussion.
39

On the other hand, the use of UAVs can be highly restrictive where issues of
privacy are concerned. For example, in the US Peeping Tom laws make it
impermissible to use a camera mounted on a UAV to spy on a neighbours
backyard sunbathing habits. This is premised on the basis that a neighbour
has a reasonable expectation of privacy protection under the Fourth
Amendment of the US Constitution and is justified in thinking that no one
should be looking from above. Should this be pursued in the courts the
neighbour would likely sue for intrusion upon seclusion. This is considered
to be highly offensive behaviour to a reasonable person. Section 652B of the

38
United States Air Force (USAF), USAF Instruction 14-104 (23 April 2012) Oversight
of Intelligence Activities. See S Aftergood, USAF Drones may conduct incidental
domestic surveillance on Secrecy News (8 May 2012)
<http://blogs.fas.org/secrecy/2012/05/usaf_drones/>.
39
L Peter, Spying on Europes farms with satellites and drones (8 February 2012) BBC
News Europe <http://www.bbc.co.uk/news/world-europe-16545333>.
EAP 20
Restatement (Second) of Torts creates a cause of action for intrusion upon
seclusion. Other examples of legal restrictions in the US on the use of UAVs
are apparent from the court cases reported below.
UAVs and US legal restrictions: private premises
Police UAVs may not look into windows of suspects for illicit drug
manufacture.
40
But the law does not generally recognise privacy rights
regarding anything that the police can spy from a public vantage point.
41

Police officers in a helicopter may look into backyards without a warrant but
walking through homes is off-limits without a warrant.
42

Neither can police use thermal imaging and other equipment for surveillance
through walls and buildings where the equipment is not in general public
use.
43

It may be permissible for police UAVs to follow a vehicle for surveillance
purposes but this monitoring cannot be undertaken over an extended period
of time as a warrant to do so may then be required.
44

However, if one were to take vigilante measures and bring down a UAV
hovering over ones property, the law is uncertain. The legality of this action
depends on the height the vehicle is above ground level: generally if the
vehicle is flying at 100 feet (30 m) above ground level then general aviation
safety law applies and the house owner may be liable for wilful damage and
endangering the safety of the neighbourhood.
45
On the other hand, there may
be instances where the landowner is entitled to protect property from
intrusion by a drone. For example, under the Restatement (Second) of Torts,
s 260,
one is privileged to commit an act which would otherwise be a
trespass to a chattel or a conversion if the act is, or is reasonably
believed to be, necessary to protect the actors land or chattels or
his possession of them, and the harm inflicted is not
unreasonable as compared with the harm threatened.

40
Florida v Riley, 488 US 445 (1988).
41
California v Ciraolo, 476 US 207 (1986).
42
US v Dunn, 480 US 294 (1987).
43
United States v Penny-Feeny, 773 F Supp 220 (DC Haw, 1991).
44
US v Jones 132 S Ct 945 (2012).
45
N Shachtman, No, you cant use a drone to spy on your sexy neighbour (22 June 2012)
Wired Magazine <www.wired.com/dangerroom/2012/06/ff_dronerules/>.
EAP 21
This implies that in certain instances, a landowner would not be liable to the
owner of the drone for damage necessarily or accidentally resulting from
removing it from the landowners property.
In the US the Fourth Amendment regulates when, where and how the
government may conduct searches and seizures. Note that this applies only to
those acts that constitute a search and a courts assessment will be focussed
on the specific area being investigated. In 1967, in Katz v United States the US
Supreme Court held that an FBI agents use of a bug to listen to the private
conversations of Mr Katz while in a telephone booth violated his Fourth
Amendment rights.
46
Although there was no physical invasion one of the tests
that the Court used was whether the person has a subjective expectation of
privacy in the area to be searched and whether society deemed that
expectation to be reasonable.
The manner of the search has also been determinative. In Kyllo v United
States, government agents used a thermal-imaging device to determine heat
patterns inside the home of Kyllo.
47
The Supreme Courts initial presumption
was that a warrantless search of a home was unreasonable. But ultimately the
Court protected this realm of guaranteed privacy by holding that obtaining
information about the inside of a home that could not otherwise be obtained
except by entering the home, through the use of technology not in general
public use, is a search covered by the Fourth Amendment.
Applying the Fourth Amendment to UAVs thus necessitates asking the
threshold question: was there a search? Depending on the factors such as the
area of the search, the technology used, and whether society would respect a
targets expectation of privacy in the place searched, a reviewing court could
decide the threshold question. If it was not a search, neither a warrant nor any
degree of individualised suspicion would be required. If, on the other hand it
was concluded that it was a search, then a court could further ask whether a
warrant was required, if one of the exceptions applied and what the level of
suspicion was in the instant case to uphold the search.
Hence, in analysing domestic UAV litigation under the Fourth Amendment, a
reviewing court may be informed by cases surrounding privacy in the home
and privacy in public spaces. In addition, reviewing courts will need to
consider cases involving location tracking, manned aerial surveillance, those
involving the national border, and warrantless searches under the special
needs doctrine.
UAVs and US legal restrictions: privacy in public places
In conceptualising privacy, the law concerning activity in public and physical
spaces can be more problematic. A continuum of privacy interests, of zones

46
Katz v United States, 389 US 347, 359 (1967).
47
Kyllo v United States, 533 US 27 (2001).
EAP 22
of privacy, and of personal, social and public space has been acknowledged
by the courts. Such spaces may extend vertically and horizontally. In the
English common law tradition, much use has been made of the Latin maxim
cujus est solum ejus est usque ad coelum et ad inferos (he who owns the surface of
land also owns the sky stretching to the limits of the atmosphere and all the
soil to the centre of the earth).
Applying this idea to privacy, it is suggested that a person may have a right
to privacy in the space above. Any intrusion into this space the vertical
zone is an intrusion of privacy. Extant litigation in Australia and elsewhere
discussed below will demonstrate that such a suggestion is not as absurd and
as farfetched as it sounds.
The continuum of what is in the private domain and what is in the public
domain may be visualised in two dimensions in a linear fashion or three-
dimensionally as a bubble as shown in Figure 1. The boundary demarcating
one from the other is hazy given that there is a tension between the totally
selfish as opposed to the totally selfless one. The width and placement of the
demarcation line could be weighted in terms of political interests, economic
interests, and other interests, including religious and cultural ones. From this
conceptualisation, we may have a core area that offers total privacy to a
person the umbra (similar to the dark central part of a sunspot)
surrounded by the penumbra where there may be lesser expectations of
privacy. Outside these two areas lies the public commons where an
expectation of privacy may not exist.
EAP 23
Figure 1. Zones of Privacy: Umbra and Penumbra
Plane 2D view

Perspective 3D view

Source: George Cho 2013
Based on the preceding discussions, a review of common law jurisdictions
was undertaken to understand what the law has been in regard to two
recurring themes that of aerial surveillance and that of privacy vis--vis
nuisance and trespass law. Rather than discuss each case individually,
decisions of the courts are provided as a summary.
Table 2 displays the results of this review of selected court cases involving the
use of aircraft for surveillance and other purposes. The name of each case is
given, its jurisdiction identified, the location information in the case, the
technology involved and the main finding in the case. The cases are listed
chronologically. From this chronological listing alone one may observe the
development of case law dealing with this subject matter.
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EAP 24
Table 2: Litigation selected cases involving aircraft surveillance and court findings
Litigants Jurisdiction
Location
information
Technology Court finding
Aerial surveillance cases
Smith v New
England
Aircraft Co, 270
Mass 511
(1930)
US
Flights at 31 m
over cultivated
trees
Aircraft
Trespass
upheld
Hinman v
Pacific Air
Transport, 84 F
2d 755, 757
(CCA 9th Cir,
1936)
US
The air, like the
sea, is by its
nature
incapable of
private
ownership,
except in so far
as one may
actually use it
Haney CJ
Delta Air Corp v
Kersey, 193 Ga
862, (20 SE 2d
245, 1942)
US Property Aircraft
Flight over
property must
result in actual
interference in
use of land
before trespass
is found
United States v
Causby, 328 US
256 (1946)
US Chicken farm
Military aircraft
flying over
chicken farm
ruined egg
production
Constituted a
taking of
private
property 5
th

Amendment of
Constitution
requires
compensation
Kelsen v
Imperial Tobacco
Co (of Great
Britain and
Ireland) Ltd
[1957] 2 QB 334
UK
Advertisement
sign over shop
overhang
Court held
projected out
sign over
building
constituted a
trespass
Re Lehrer and
the Real
Property Act
(1960) 61 SR
(NSW) 365
Australia
Leases to
upstairs rooms
in a building

Upstairs rooms
airspace could
be conveyed as
separate leases
EAP 25
Location
information
Coolidge v New
Hampshire
(1971) 403 US
443
US
Plain view
doctrine
police must be
in a lawful
vantage point
when
conducting
surveillance
Bursill
Enterprises Pty
Ltd v Berger
Bros Trading Co
Pty Ltd [1970-
1971] 124 CLR
73
Australia Building
A grant
described as an
easement was
in fact
transference of
airspace
Bernstein of
Leigh (Baron) v
Skyviews and
General Ltd
[1978] 1 QB 479
UK Private property
Aerial
photographs of
property
restricting the
rights of an
owner in the
airspace above
the land to such
height as is
necessary for
the ordinary
use and
enjoyment of
his land
Griffith J
California v
Ciraolo, 476 US
207 (1986)
US Home backyard
Fixed wing
aircraft at 330 m
visual
inspection with
naked eye
Observation by
police from a
public vantage
point and
activities clearly
visible gives no
reasonable
expectation of
privacy
Dow Chemical v
United States
(1986) 106 S Ct
1819, 90 Led 2d
226
US Factory
Precision aerial
mapping
camera
photographs of
factory
US Supreme
Court open
field no
invasion of
privacy.
Photographing
from navigable
airspace not a
search
Florida v Riley
(1988) 488 US
445
US
Greenhouse 3-7
m from home
Helicopter at
122 m observe
marijuana
plants through
hole in roof
Court held not a
search hence no
warrant
required
EAP 26
Location
information
LJP Investments
Pty Ltd v
Howard Chia
Investments Pty
Ltd (1989) 24
NSWLR 490
Australia
Scaffolding
stretched across
into property

Constituted a
trespass
Depsun Pty Ltd
v Tahore
Holdings Pty
Ltd (1990)
NSW ConvR
58
Australia
McLelland J
airspace not a
legal or
equitable estate
or interest in
land
United States v
Penny-Feeny,
773 F Supp 220
(D Haw, 1991)
US
Police helicopter
with forward
looking infrared
(FLIR) device
emissions from
garage
District Court
endorsed police
use of
equipment
United States v
Smith, No 91-
5077 (5
th
Cir,
Nov 12, 1992)
US
US Court of
Appeals Fifth
Circuit
technological
advances
capable of
expanding
legally
protected range
of privacy
individuals
enjoy
Streisand v
Adelman, Case
No SC 077 257
(Cal WD, 31
Dec 2003)
US Private property
Air photo
survey aircraft
at 150 m
altitude as part
of California
Public Coastal
Records Project
No privacy
violation.
Upheld 1
st

Amendment of
Constitution
right to public
on matters of
public
significance
United States v
Jones, 132 S Ct
945 (2012)
US Motor vehicle GPS tracker
Reasonable
expectation of
privacy as a 4
th

Amendment of
Constitution
search requiring
a warrant
EAP 27
Location
information
Curtilage and open field doctrines
United States v
Hester, 365 US
57 (1924)
US Outside home
Distinguishing
between
doctrines of
curtilage and
open field
Oliver v United
States, 466 US
170 (1984)
US At home
Defined
curtilage
sanctity of a
mans home
and the
privacies of life
at 630
United States v
Dunn, 480 US
294 (1987)
US Home backyard
Criteria used
for curtilage
and whether
protected from
observation by
passer-by at 301
Maisano v
Welcher, 940 F
2d 499 (9
th
Cir,
1991)
US Driveway
Not curtilage as
no affirmative
actions taken to
block it from
observation by
passer-by

In the 1930 case of Smith v New England
48
trespass was upheld and in Hinman
v Pacific Air
49
the judge ruled on the ownership of airspace hinging on actual
use of it and is reiterated later in the case of Bernstein of Leigh (Baron) v
Skyviews and General Ltd.
50
In Delta Air Corp v Kersey
51
the Court held that there
must be actual interference in the use of the land before trespass is found.
This is similar to the finding in United States v Causby
52
where egg production
was ruined because of aircraft activity over a farm. In Kelsen v Imperial Tobacco
Co
53
advertisement signs overhanging onto a neighbours property were
deemed a trespass. This also occurred in the Australian case of LJP Investments
Pty Ltd v Howard Chia Investments Pty Ltd.
54
Upstairs room airspace could be

48
Smith v New England Aircraft Co, 270 Mass 511 (1930).
49
Hinman v Pacific Air Transport, 84 F 2d 755, 757 (CCA 9th Cir, 1936).
50
Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] 1 QB 479.
51
Delta Air Corp v Kersey, 193 Ga 862, (20 SE 2d 245, 1942).
52
United States v Causby, 328 US 256 (1946).
53
Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334.
54
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490.
EAP 28
conveyed as separate leases as determined in Re Lehrer and the Real Property
Act
55
which was later supported by Bursill Enterprises Pty Ltd v Berger Bros
Trading Co Pty
56
and Depsun Pty Ltd v Tahore Holdings Pty Ltd.
57

In California v Ciraolo
58
the observation by police from a public vantage point
of activities provided no reasonable expectation of privacy. This was
reiterated in Dow Chemical v United States
59
and in Florida v Riley
60
where
photographing from a navigable airspace did not constitute a search. Using
infrared devices to detect emissions is permissible United States v Penny-
Feeny
61
later endorsed by United States v Smith
62
which said that technological
advances expanded the legally protected range of privacy that individuals
expect to enjoy. Streisand v Adelman
63
suggests that there can be no violation of
privacy on the grounds that the public had a right to know on matters of
public significance. However, placing a GPS tracker on a vehicle to track it
violates the Fourth Amendment United States v Jones.
64

Under the curtilage and open field doctrines, at least in the US, a distinction is
made between what is in the home and what is outside the home (United
States v Hester).
65
Any entry into a home requires a warrant. It is arguable
whether the driveway or backyard is private property. Here the curtilage
defines the sanctity of ones private space free from interference either in
trespass or from observation (Oliver v United States).
66
Next, where such
spaces are observable from a public vantage point then ones privacy might
be compromised and there may be no protection from peering eyes (United
States v Dunn
67
and Maisano v Welcher
68
). Indeed as found in California v
Ciraolo
69
the observation is by visual inspection with the naked eye.

55
Re Lehrer and the Real Property Act (1960) 61 SR (NSW) 365.
56
Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd [1970-1971] 124 CLR 73.
57
Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) NSW ConvR 58.
58
California v Ciraolo, 476 US 207 (1986).
59
Dow Chemical v United States, 476 US 227 (1986).
60
Florida v Riley, 488 US 445 (1988).
61
United States v Penny-Feeny, 773 F Supp 220 (D Haw, 1991).
62
United States v Smith, No 91-5077 (5
th
Cir, Nov 12, 1992).
63
Streisand v Adelman, Case No SC 077 257 (Cal WD, 31 Dec 2003).
64
United States v Jones, 132 S Ct 945 (2012).
65
United States v Hester, 365 US 57 (1924).
66
Oliver v United States 466 US 170 (1984).
67
United States v Dunn, 480 US 294 (1987).
68
Maisano v Welcher, 940 F 2d 499 (9
th
Cir, 1991).
69
476 US 207 (1986).
EAP 29
2.2.2 US privacy law developments
The following focuses on the development of privacy law in the US and in
particular the use of drones for domestic surveillance operations. It is
observed that this use has stretched interpretation of the Fourth Amendment
and poses challenges to legislative responses. The Fourth Amendment
provides a right to be free from unreasonable searches and seizures and a
reasonable expectation of privacy. Drone surveillance may upset the concept
of expecting privacy in some situations. A court may weigh up the
reasonableness of drone activity by considering the location of the
surveillance, the sophistication of the technology employed and societys
conception of privacy in a technological age.
While US citizens may expect substantial protections against warrantless
government intrusions into their homes, the Fourth Amendment is less robust
when the surveillance occurs in public places. Fourth Amendment protections
are even less robust in areas immediately outside the home such as driveways
and backyards.
Reasonableness under the Fourth Amendment may seem to be flexible and
may have to be adjusted as peoples expectations of privacy change.
US jurisprudence on the Fourth Amendment-based privacy has seen courts
shift position from the previously property-based trespass-nuisance criterion
to one where there is a subjective expectation of privacy. As noted in US v
Jones,
70
the Fourth Amendment protects people not places even though as a
result, the protection of people requires reference to a place. This physical
space rationale from the case suggests that the concept is ripe for a further
expansion in interpretation. There are also considerations of privacy in the
home and where it is permissible and impermissible to intrude either with or
without a warrant to enter. Here the plain view doctrine holds sway since it
depends on where the observer was situated and the location of the observed.
Making a distinction between curtilage and open field perhaps provides the
initial divide between what is public and what is private.
71

In the US landowner rights are restricted with regard to the navigable
airspace above private property. The US Supreme Court has stated that the
air is a public highway, as Congress has declared. Were that not true, every
transcontinental flight would subject the operator to countless trespass suits.
Common sense revolts at the idea.
72

A further judicial shift in opinion especially with the use of drones is the
pilotless nature of the observation and how this sits with the Fourth

70
132 S Ct 945 (2012).
71
See Coolidge v New Hampshire, 403 US 443 (1971).
72
United States v Causby, 328 US 256 (1946).
EAP 30
Amendment. The expectation of the law is that there is a human observer and
a human being observed, and the observation is made with the naked eye.
One common law concept that is increasingly under challenge to privacy law
is the saying that one mans home is his castle. This idea is encapsulated in
the English common law of protecting ones home against government
intrusion. The parallel US legal doctrine is known as Castle law, or Defense
of habitation law, which designates ones place of residence as a place within
which one enjoys protection from illegal trespass and violent attack. The
protection extends to the curtilage the enclosed area of land around a
dwelling. Both the home and the curtilage can provide one with a reasonable
expectation of privacy.
In the US at the 112th Congress, several measures were introduced that
proposed restrictions to the use of drones. Senator Rand Paul and
Representative Austin Scott introduced the Preserving Freedom from
Unwarranted Surveillance Act of 2012, which would require law enforcement
officers to obtain a warrant before using drones for domestic surveillance
subject to several exceptions. Representative Ted Poe introduced the
Preserving American Privacy Act of 2012 that would permit law enforcement
officers to conduct drone surveillance pursuant to a warrant, but only in the
investigation of a felony. Representative Shelly Moore Capita introduced the
Farmers Privacy Act of 2012 which would prohibit the Environment Protection
Agency (EPA) from conducting aerial surveillance of agricultural lands unless
the EPA has consent from the farmer, has provided public notice, or has
obtained a certificate of reasonable suspicion from the United States District
Court for the District of Columbia. Representative Ed Markey introduced the
Drone Aircraft Privacy and Transparency Act of 2013. This bill would amend the
FAA Modernization and Reform Act of 2012 to create a comprehensive scheme to
regulate government actors use of drones, including data collection
requirements and enforcement mechanisms.
73

It may observed that UAVs may perfect the art of surveillance with available
technology to the extent that it will engender discomfort and disquiet for
many people. Echoes of George Orwells 1984 resonate where visions of an
Oceania come into view (no pun intended) describing small flying devices
roaming the neighbourhood and peering into windows. Calo strongly
believes that the lack of a coherent mental model of privacy harm helps
account for the lag between advances in technology and developments in
privacy law.
74
Drone usage has virtually floated onto the civilian arena
through a process of acclimation first used for disaster relief and domestic
purposes and then left in place where the local citizens become comfortable
with its presence and in turn pay little or no attention to it. The public accept
its omnipresence. The installation of CCTV cameras is a graphic illustration of
such a process of acclimation.

73
HR 1262, 113
th
Cong (2d Sess, 2013).
74
Calo, above n 34.
EAP 31
The responsible use of these emerging techniques requires more
transparency and even application than police departments are accustomed to,
but decrease in law enforcement discretion is its own achievement.
75

Safeguarding privacy in the new era may require police to obtain warrants for
drone use that would violate reasonable privacy expectations. The exception
could be in clearly defined emergencies or in stopping a crime in progress. At
the same time the public need to be advised of any continuous monitoring
that is planned such as at traffic trouble spots and that such monitoring is
posted online at police and emergency and rescue websites.
Where data are collected that enables the identification of persons and unless
it is part of a criminal investigation, the handling of such data must be subject
to well-known and acknowledged Fair Information Practice Principles (FIPP)
in the US, Australia and elsewhere. Such principles require notice that data
are being collected, how it is going to be used, how one may access ones own
data to check for accuracy, the protection of the security of the data and the
strict regulation for the retention or sharing of the data.
On the issue of using drones to track people, it seems unrealistic and could be
a myth that UAVs could be programmed to track persons or suspects. Present
technology suggests that such close surveillance is not yet possible.
Practicalities such as the constant buzz of a distant propeller give way to the
stealth and secrecy of person-tracking. In the combat zone, the constant buzz
of the drone has earned it the name bangana (buzzing wasp) in Pashtu
language. In Waziristan, Pakistan nearly everyone can see the drones 1500 m
up in the sky all day and night as a constant reminder of an imminent strike
and death.
76

2.2.3 Summary
To summarise, privacy in a majority of these reported cases is predicated
initially on trespass and nuisance law especially when emphasising the
curtilage and open field doctrines. The Fourth Amendment of the US
Constitution refined expectations of privacy and ones freedom from
surveillance without a warrant and a just cause. Given the greater use of
technology in surveillance cases, the ambit of the privacy cases suggests that
technology itself might extend what expectations of privacy one may or may
not assert. Where privacy is concerned there does not appear to be any
difference whether in the common law or public law. However, it appears
that the protection of privacy as a property-based concept that encompasses
private property, trespass and nuisance law has morphed to a notion of
privacy as a constitutional right and an expectation right.

75
J Y Bambauer, How the war on drugs distorts privacy law 64 Stanford Law Review
Online 131 (9 May 2012) <http://www.stanfordlawreview.org/printer-
friendly/online/war-on-drugs-privacy-law/>.
76
C S Smith, Terror from the heavens: Drones are traumatising Pakistan The
Canberra Times (Australian Capital Territory) 26 September 2012, 9.
EAP 32
2.3 Technical and operational issues
In the context of UASs and UAVs, autonomy refers to the automation of a
particular function within programmed limits. Human operators supervise all
autonomous systems at some stage. Autonomy does not mean computers are
making independent decisions and taking uncontrolled action.
77

In relation to the safe use of UAVs, current autonomous systems are
considered brittle platforms. These platforms are brittle because unmanned
aerial vehicle operations may suffer irreversible operational errors that occur
in real-time. One example is the ease with which some UAS communication
hardware may be hacked into and its control taken over by persons with
malicious intentions. As an experiment, a team of university researchers were
able to penetrate the electronic system of a global positioning system (GPS)
attached to an unmanned aerial vehicle based on a dare issued by the US
Department of Homeland Security.
78
Members of the Radio Navigation Lab at
the University of Texas at Austin apparently spoofed the UAV using an
unencrypted GPS signal, one normally used by civilian planes, together with
inexpensive equipment to achieve their objective. This may be a trivial
illustration of brittleness but it nevertheless highlights the vulnerability of the
system to an attack. UAVs in the combat zone may be subject to attack and
suffer damage friendly or otherwise. Such brittleness may retard the
potential benefits that could be obtained from the advances in autonomous
systems.
79

In the long-term, the US Department of Defense has reviewed the future of
UASs in regards to training of personnel, operations of such systems and their
sustainability in future.
80
Because of the rapid growth of UAS inventories
since 2000, there have arisen questions of the long-term sustainability and
support for these systems. In particular, the training of sufficient personnel to
operate and maintain the aircraft, the provision of adequate facilities and
other infrastructure to support these systems and to provide sufficient access
to airspace and training ranges for these purposes. The emphasis on long-
endurance, unmanned intelligence, surveillance and reconnaissance assets,

77
Defense Science Board, Task Force Report: The Role of Autonomy in DoD Systems (July
2012) US Department of Defense (DOD)
<http://www.fas.org/irp/agency/dod/dsb/autonomy.pdf>.
78
Editorial, Researchers use spoofing to hack into a flying drone (29 June 2012) BBC
News Technology <http://www.bbc.com/news/technology-18643134>.
79
S Aftergood, Greater autonomy for unmanned military systems urged on Secrecy
News (6 September 2012)
<http://blogs.fas.org/secrecy/?s=unmanned&submit.x=7&submit.y=8&post_typ
e=post>.
80
Under Secretary of Defense for Acquisition, Technology and Logistics, Report to
Congress on Future Unmanned Aircraft Systems Training, Operations, and Sustainability
(April 2012) US Department of Defense <http://www.fas.org/irp/program/uas-
future.pdf>.
EAP 33
many with strike capabilities, has meant that there is a demand for support
infrastructure in personnel and hardware. These developments also suggest a
need for enhanced access to the NAS.
Currently, military UAS operations within the US conducted outside the
restricted, warning and prohibited areas have to be authorised by the
FAA under a temporary Certificate of Waiver or Authorization (COA) with
limited conditions. Other users of the NAS for research purposes include the
National Aeronautics and Space Administration (NASA), the Department of
Homeland Defense/Homeland Security (DHD/DHS) and the Defense
Support of Civil Authorities (DSCA) missions for disaster relief, search and
rescue. The challenges of integrating the civilian with the military airspace are
formidable and require multi-agency collaboration and on-going negotiations
with the FAA. One wonders what will happen when civilian UAVs take to
the skies in larger numbers than at present. After 2015, US skies will be open
to UAVs and access to the NAS will be permitted. This access of civilian
UAVs to the NAS is a wish of Congress through the FAA Modernization and
Reform Act of 2012 where the FAA should have in place mechanisms that
provide an open skies policy to UAV by 2015.
2.4 Export controls
Unmanned aerial vehicle technology may have a dual-use military and
civilian. As such, manufacturers or exporters of the technology will need
consider export controls within their respective markets. All unmanned aerial
vehicle related goods are likely to require an export permit to other countries,
even for civilian use. The UK has a general export permit for unmanned aerial
vehicle autopilots for all members of the EU. To obtain such a permit a
manufacturer will need to request the recipient or buyer for an end-use
statement that forbids the re-export of the goods outside the EU. These export
controls are the result of an international arrangement and a regime.
Signatories to the Wassenaar Arrangement and the MTCR are two
international treaties that have jointly drawn up lists of controlled unmanned
aerial vehicle goods.
81

The Wassenaar Arrangement on Export Controls for Conventional Arms and
Dual-Use Goods and Technologies is a multilateral export control regime
comprising of 40 participating countries. The goal is to contribute to regional
and international security and stability, by ensuring transparency and greater
responsibility in transfers of conventional arms and dual-use goods and
technologies.
In the US the regulator is the Department of State and Department of
Commerce through the International Traffic in Arms Regulations (ITAR)

81
Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods
and Technologies (2013) <http://www.wassenaar.org/index.htmland>; and Missile
Technology Control Regime (MTCR) (2013) <http://www.mtcr.info/>.
EAP 34
legislation.
82
The ITAR is a set of US government regulations that control the
export and import of defence related articles and services on the US
Munitions List (USML). Under the ITAR some UASs are classified as weapons
that are covered under the USML. The trade in these systems and services
require an export licence to be approved by the US Department of States
Directorate of Defense Trade Controls. In September 2010, the US Senate
approved the US-UK and the US-Australia Defense Trade Cooperation Treaties.
The treaties allow for the export or transfer of certain defence articles and
defence controlled services pursuant to the ITAR between certain persons in
the US, UK and Australia without the need for export licences or other ITAR
approvals. There is, however, an open debate between the Department of
State, industries and academia concerning the ITAR regulations and harm to
US businesses and higher education institutions that market and use UAVs.
83

The MTCR is an informal voluntary partnership between 34 countries that
aims to prevent the proliferation of missile technology. Established in April
1987, the MTCR aims to curb the spread of unmanned delivery systems for
nuclear weapons, in particular those that could carry a payload in excess of
500 kg and a minimum range of 300 km (Category 1). The MTCR adheres to
an export policy guideline applied to a common list of controlled items.
Under MTCR guidelines the export of UAVs carries a strong presumption of
denial of an export licence. All decisions are by consensus and MTCR
partners regularly exchange information about relevant national export
licensing issues.
In the UK, the Ministry of Defence (MOD) has authority over unmanned
aircraft export controls.
84
A company wishing to export controlled goods
would require a MOD clearance including the release of classified
information held by defence companies. Form 680 is used to apply for
clearance to consider the release of classified information held by defence
companies. However, obtaining an F680 clearance for the marketing of a
product to a specified destination does not guarantee the grant of an export
licence. The F680 simply provides some indication as to the likelihood of any
difficulty in obtaining an export licence.

82
Directorate of Defense Trade Controls, International Traffic in Arms Regulation (1
April 2012) US Department of State
<http://pmddtc.state.gov/regulations_laws/itar.html>.
83
Directorate of Defense Trade Controls, Defense Trade Treaties Fact Sheet (2012) US
Department of State
<http://pmddtc.state.gov/treaties/documents/Defense_Trade_Treaties_Fact_She
et.pdf>.
84
UK Ministry of Defence, Unmanned Aircraft Export Controls (2012)
<http://www.businesslink.gov.uk/bdotg/action/detail?itemId=1084276924&type
=RESOURCES>.
EAP 35
3 Some Preliminary Conclusions
This paper is about the policy, legal and privacy implications of the use of
UAVs and UASs generally in civilian environments. The survey provided a
background for an understanding of the various names used to describe these
aircraft from drones to attack drones and disaster drones. Pilotless aerial
vehicles have been used since the turn of the century, for instance, in the two
World Wars.
A summary table was used to help conceptualise the scale and breadth of
different configurations of UAVs. The table underscores the myriad sizes,
scales and functional capabilities of selected UAVs whether in the civilian or
military use. While mass is a surrogate measure for a classification system, it
seems that a better criterion is to use kinetic energy impact levels as a
taxonomic tool. A feature of such comparisons is that vehicles with a mass of
less than 150 kg classed as small UAV is becoming an attractive
platform for many civilian applications. Whether this becomes a standard
configuration will depend largely on policy and regulatory considerations.
Public awareness of UAVs and the political understandings of UAVs are
thought to be paramount if there is to be support and acceptance of the
technology and its future development. The introduction of UAVs to
domestic airspace raises safety and integration issues. The lack of a detect
and avoid system is a key technology that is still missing in the use of UAVs.
The current ban on commercial use of UAVs other than the provision of
services, such as aerial photography, may have an influence on further
research and development.
The regulation of UAVs is nascent and poses several legal and regulatory
challenges. Different jurisdictions have approached such challenges in
particular ways depending on national objectives and priorities. Examples
from the US, UK and Australia show that air navigation safety is the top-
ranked concern that has attracted close attention. Other regulatory challenges
include minimising risk for all users of navigational airspace, compliance
with air navigation rules and benchmarking between nations to share best
practices in the unmanned aerial vehicle industry.
The use of UAVs for surveillance purposes has produced much opposition
and debate everywhere as well as court litigation. Precedents from the
common law suggest that after trespass and nuisance, constitutional
guarantees of an expectation of privacy may become the dominant source of
litigation. In particular, the focus on surveillance cases in the US involving
aircraft and violations of the Fourth Amendment has highlighted the
evolution of the law and the changes to court opinions that guarantee the
expectations of privacy of American citizens. Preliminary conclusions from
this section on privacy are that UAVs engender both disquiet and discomfort
given the unconscious feeling that there are eyes in the sky observing and
recording activities of private citizens. While having become acclimated to
their presence, unlike closed circuit televisions (CCTV), current versions of
UAVs emit an audible buzz and a reminder of their presence in the air.
EAP 36
The final section discussed technical and operational issues on the use of
UAVs. Vehicular autonomy and the safety of operations featured prominently
in the discussion. Attention to these issues may provide the framework for
the unmanned aerial vehicle industry and its development. However, this is
not to detract from its civilian and military use and the restrictions on its
manufacture and export in a global context.
The contribution of this paper on the use of UAVs and UASs generally in civil
applications has drawn out the major implications on policy, law, privacy and
its technology and operations. First, it has identified that definitional issues
need immediate resolution.
Second, this paper has identified the regulatory challenge for all jurisdictions
is the assurance of an equivalent level of safety for the operation of UAVs in
the national airspace. There is a crying need for the development of
harmonised international air navigation rules. This should not discriminate
between mass, size and any other criterion. However, much research in terms
of detailed, cross-county comparisons is needed to ensure that the best
practice of any jurisdiction can become a feature of an international rule or
regulation.
Third, this paper has identified that the many shades of privacy concerns
across jurisdictions. In particular, the court cases provide guidance on the
legal bases of the violation of privacy and the expectations of privacy.
Finally, many issues remain unresolved. Definitions of UAVs can be
problematic as is the lack of a truly autonomous system for integration into
national airspace because the technology is still evolving. A truly national
aviation system, which integrates UAVs seamlessly, may be difficult to
establish. The difficulties stem from the standards of airworthiness that are
acceptable for civilian purposes, the development of capabilities of sense and
avoid systems and pilot or operator training and certification. Unmanned
aerial vehicles are unique and call for unique solutions to the problems and
challenges of this new industry.

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