Aerial drones are increasingly being repurposed for domestic use and legislated for public and commercial purposes around the world. Japan, Australia, Canada, and the U.K. are among some of the countries with civil drone regulations in place, and there are many others soon to follow.1 In fact, Canada had legislated civilian use of drones as early as 1996, when the term “non-piloted aircraft” was introduced into the official rules governing Canada’s airspace, the Canadian Aviation Regulations . What was it that prompted the need for regulations in Canada at such a nascent stage in the technology’s development?
In 1996, the federal ministry of Environment Canada began negotiations with a U.S. company to deploy drones as part of the company’s international Aerosonde program . The goal of the company, The Insitu Group, was to build drones for meteorological purposes. The plan came to fruition in April of 1998 when The Insitu Group launched four drones off the coast of Tofino in British Columbia, making it one of the first companies to operate drones commercially in the country. Four months later, The Insitu Group embarked on another pioneering mission when they launched the Aerosonde “Laima” drone over the Atlantic Ocean beginning in Newfoundland, Canada and ending in South Uist, Scotland. This event marked the first drone to successfully cross the Atlantic Ocean , . This flight, however, is historic for another reason. The successful deployment of the Laima drone generated excitement in the commercial sector and helped to encourage the development of Canada’s non-military market for drones . By 2007, nearly a decade later, Canada was home to 220 drone-related companies in all sectors , and in the same year, the industry generated an impressive $787 million in total sales .
Today, Canada has numerous manufacturers of drones, as well as research institutes dedicated to furthering their technological development. We have companies offering their drone services for aerial filming, real estate, geosurveying, agriculture, infrastructure inspection, law enforcement and private security, and even to chase away geese at Ottawa’s Petrie Island . Public agencies, such as Canada’s police services are some of the most active users of the technology, with federal, provincial, and regional police services presently engaged in drone operations.
Of the various potential uses for drones, the vast majority require sensory equipment of some kind. In the case of drones operated beyond the line of sight, they require information about their surroundings simply in order to operate safely. Apart from hobbyists flying small drones within line of sight and without the use of a camera, there are few drone uses that do not require equipment that inherently takes in information regarding its environment. For the most part then, drones are intrinsically a surveillance technology. They can capture information from various types of cameras, including night vision, infrared, and cameras with high power lenses . They can also capture signals from tracking devices, as well as intercept communication signals . Moreover, software can be used to augment these layers of sensory input, including programs such as license plate readers, or in the future, facial recognition software.
Considering that drone activity is already occurring in Canada, it’s important to understand how drones are being regulated, especially since we are in formative years that will shape future practices where drones will play a larger role in society with even greater sophistication.
To understand drone regulation in Canada, we must look primarily to Transport Canada, the central agency in charge of integrating civil drones into domestic airspace.2 Transport Canada creates the rules of conduct for civil drone operations and is also responsible for authorizing drone use, through the issuance of certificates. A Special Flight Operations Certificate (SFOC) is the document required to operate a drone in Canada and is required for all uses that are not considered military or recreational. Military uses of drones in Canada fall under the authority of the Department of National Defence, while recreational uses do not require a SFOC to operate.
Since drones are partly aircraft, it may seem logical to have a civil aviation regulator such as Transport Canada take charge of the regulatory framework for drones. After all, this is the common trend happening around the world. But when we stop a moment to think about what a drone actually is, we know they are much more than just aircraft. By virtue of their size and design, drones can venture into places traditional aircraft cannot. Some drones are able to maneuver in tight spaces, including indoors. Others can stay aloft for potentially years at a time without the need to land . Moreover, to operate at the highest level of safety, drones that operate beyond line of sight require the ability to observe and communicate, effectively making them surveillance devices. In addition to collecting information necessary to operate safely, drones can be equipped with supplemental sensing devices for various uses. It is clear that drones will be collecting significant quantities of data, potentially in a covert manner, and for long periods of time. Transport Canada, and civil aviation bodies elsewhere, are regulating the airplane characteristics of the technology, but are not addressing the computing and sensing portion of these devices. This has radical implications, not only for the creation of sound regulatory policy, but also for the protection of civil liberties and privacy in particular.
The issue at stake is how to regulate drones so that harmful practices are mitigated and fundamental rights and freedoms, including privacy, are protected. Focusing on Canada’s policy-making process, the following are seven preliminary suggestions for civil drone regulations:
Policy-Making Process for Drones Should be Broadened to Include Privacy and Civil Liberties Representatives
The current Canadian regulatory framework for drones, including the certification process, is undergoing significant changes to encourage the safe and routine integration of drones into Canada’s airspace by 2017 . The process involves Transport Canada, with the help of a working group comprising industry and government stakeholders, to create new regulations for drones, and amend existing ones. (Note: Transport Canada’s working group is officially called the Unmanned Air Vehicle (UAV) Systems Program Design Working Group.)
Thirty-four out of the fifty-two working group members are affiliated with the drone or aviation industries, while the rest are from Transport Canada, the Department of National Defence, the Ontario Provincial Police, and the National Research Council of Canada . The private sector, state security agents, and aviation safety experts are well represented in the working group. Absent from the list of stakeholders are civil liberties councils and privacy advocates that would otherwise make regulatory contributions to the potentially intrusive surveillance function of these technologies.
2) We Need Greater Public and Parliamentary Involvement
In Canada, product regulation, including new technologies, are usually integrated via regulatory rather than legislative frameworks. In this case, unelected officials at Transport Canada have been given the sole responsibility for overseeing the policy-making process for drones. As a result, rigorous Parliamentary debate is bypassed. Unfortunately, this is common practice since product regulation rarely involves Parliamentary oversight. In addition to this flawed process, members of the public can only engage in Transport Canada’s rulemaking procedure at the final stage through the government’s online regulatory consultation website, the Canada Gazette . Ultimately, by the time Transport Canada’s new and amended regulations are completed, the working group will have had almost eleven years to review and discuss the rules,4 while the public is on average given thirty days to review and make regulatory recommendations. Such an imbalanced rule-making process appears antithetical to a well-functioning democracy. In short, the public and elected officials need a fair opportunity to influence drone regulations.
3) Drone Regulations Should Have a Used-Based Component
The regulations underway in Canada are governed from the perspective of safety – according to a drone’s size, weight, and flight condition (e.g., line of sight and beyond line of sight). The intent of these regulations is to create standardized rules specific to the class of drone in operation. Ultimately this means that a type of drone will be regulated in the same way across all of its potential uses. From a safety perspective, this is a reasonable approach. However, upon considering that a type of drone can be used in many circumstances resulting in different impacts, this approach is inadequate. From the regulatory standpoint of Transport Canada, it makes no difference if said drone is being used to film a movie, monitor wildlife, or surveil human beings. Canada’s drone regulations should not solely be based around the safe design and operation of the aircraft, but must also attend to the context of their use. Let us clarify this reasoning with a recent example.
In May 2013, the Saskatoon Royal Canadian Mounted Police (RCMP) deployed a Dragan Flyer micro drone for a search and rescue mission . In March of 2014, another Dragan Flyer was used by the Ontario Provincial Police (OPP) to surveil a group of protesters . What this example begins to illustrate is how one class of drone can produce two radically different outcomes for society, where one operation saved a life as the other ultimately impinged on civil liberties. Let’s follow this up with some context for a future scenario. In three years time, Transport Canada will introduce a deregulated class of drone, called “low energy.” Their decision for minimum regulations for this class of drone was based solely around the minimal physical harm it poses to people and property. Hence the only requirement to operate this low energy drone will be an airworthiness document demonstrating that various safety conditions have been met.5 An example of a low energy drone is the popular micro Aeryon Scout weighing 3 lbs and operated by various police forces in Canada. Deregulating certain micro drones such as the Scout may be fine from a safety perspective, but from a use-based perspective, it will not work, as we know that drone operations can impact society in varying ways. Our regulations must be comprised of two parts: a safety and use-based component.
4) Recreational Users Operating Data-Capturing Drones Should at Minimum Require Course Instruction
Currently, drones operated for recreational use are not regulated in Canada; rather they are treated like model aircraft. If such drones are equipped with sensing equipment, users should at minimum require course training of applicable airspace, privacy, civil, and criminal laws (e.g., trespass laws).
5) Canada Should Focus on its Own Sound Policy before it Considers Harmonization with Other Countries
At the moment, Transport Canada is in the process of harmonizing regulations with the U.S. Federal Aviation Administration, the International Civil Aviation Organization, and other international regulatory agencies. Civil aviation bodies worldwide are concerned mostly with safety requirements, and while Canada should harmonize its rules with others where feasible, it should not be at the expense of protected rights and freedoms. A regulatory focus on civil liberties may at first glance seem prohibitive to growing a competitive industry. However, it’s a winning formula for the nascent industry in Canada, and elsewhere, in terms of overcoming the stigma of drones as malicious surveillance and/or weaponized devices. Thus if Canada’s industry and government concern themselves with regulating drone uses that generate public unease, the industry can build and bank on public trust. This way, there will be far fewer risks involved for all concerned parties. Canada should exercise sovereign control ahead of worldwide harmonization initiatives.
6) Under No Circumstances Should Drones Carry Lethal or Nonlethal Weapons
Drones of the future will be smarter with increasing autonomy, and equipped with even more advanced weaponry. Humans do not need to develop robotic airborne enemies.
7) We Must Attend to Privacy, Civil Liberties, and Ethical Issues before the Technology Proliferates and is Made Routine
Some may argue that we should deal with privacy issues after the fact. Instead, we must actively design our technologies to reflect the society we want to inhabit and to ensure its uses fall in line with protected rights and freedoms.6 As of 2012, Transport Canada issued 347 certificates for drone operations across the country, and by 2013 that number increased to 945, nearly threefold . The drone presence is rapidly increasing in Canada, and once a technology is adopted by society, de facto practices settle around it, rendering change much more difficult. Therefore, decisions should not be made lightly with respect to drone integration in Canada. Rather, we must draw attention to the kinds of designs and uses we want in our society. And those designs and uses should serve our shared interest in privacy and civil liberties, indispensable characteristics of a free society. Now is the time to ensure we get the regulations right, so we can harness the desirable uses of these multi-faceted technologies, before unwanted policies and practices become routine.
Shayna Gersher is a graduate student at the Institute of Political Economy at Carleton University, Ottawa, Canada. Email: Shaynagersher@gmail.carleton.ca.