Amazon’s eyes in the sky and pig farmers might fly

UAVs as small as 10cm by 2.5cm are already in use for surveillance by the military. What are the privacy implications if these devices become easily accessible? Defence Images/Flickr

What happens when an Amazon drone drops through your roof or lands on the neighbour’s toddler while delivering a parcel?

Can an unhappy pig farmer shoot down a drone operated by animal rights activists?

And are “eyes in the skies” going to be sold at the supermarket, rather than vendors of US$500 million satellites?

These are the questions worth asking amid the headline news Amazon.com is planning to deliver parcels by drone and the appearance in Australian catalogues of a range of flying devices that either feature video cameras or could be easily fitted with a camera.

As one enthusiast demonstrated – one moment you’re swooping over Sydney Harbour, the next moment your drone has banged into the bridge – it’s the year of the flying eye. Drones are increasingly cheap, robust and easy to operate. Is Australian law keeping up?

The answer is yes, but not in a neat package.

Online retailer Amazon is testing unmanned aerial devices which it says could be used for small, urgent orders to be delivered within short distances. The eight-propeller drones could transport packages weighing up to 2.5 kilograms and about 16 kilometres away from a distribution centre. Amazon/AAP

Amazon’s grand vision – or clever bid for attention – is unlikely to get off the ground.

The economics of delivery by drone are problematic, particularly over distances of more than a few blocks. More importantly the airspace regulators in Australia and the US aren’t rushing to rip up regulations that restrict the use of devices that are likely to interfere with air traffic or that pose a meaningful risk of injury when something goes wrong.

Injury is foreseeable; we already see reports of people who’ve been scalped, blinded or beheaded through a collision with a model plane.

Amazon is promoting something that’s topical, but about as credible as the flying car. Don’t expect CASA to start licensing grocery or pizza delivery by drone in the near future.

In the meantime, there are many privacy issues to address.

Spatial privacy

One of the most interesting features of the current inquiry by the Australian Law Reform Commission into the privacy tort is discussion of use of cheap off-the-shelf or kit devices – notably quadcopters – to invade private space.

There is no general right of spatial privacy in Australia. Case law over the last ninety years has grappled with questions about protection from unwanted transient/ongoing observation from a neighbouring tower or building, an aircraft, a hanglider or a camera-equipped toy.

We need to move beyond the current threadbare patchwork of law that relies on notions of offensive behaviour, nuisance, covert surveillance or stalking. In the words of one law student, do you have a right to smack an irritating microcopter with a tennis racket if it comes over the fence or “fix” its larger cousin with a shotgun if that drone appears over your commercial facility?

I asked that question at an animal law conference earlier this year, cautioning some activists against the over-exuberant use of drones to identify breaches of animal welfare law or provide evidence for environment protection.

We will increasingly see use of aerial surveillance tools by government agencies, by businesses and civil society organisations. Law enforcement and revenue collection personnel are using drones to identify illegal activity, including for example unauthorised residential development and the tell-tale heat signature of illegal marijuana greenhouses.

Vigilante justice?

Given restrictions under trespass law that inhibit unauthorised entry to industrial or agribusiness facilities for collection of evidence, some activists are starting to use drones. That use will increase and is not necessarily a bad thing.

We will however see facility operators taking the law into their own hands, shooting pesky drones and copping a penalty for destruction of the activists’ property. Some activists will shrug off the loss of a A$250 minicopter but howl when a A$30,000 device is destroyed.

Self-help has legal limits, particularly if the “bird” is winged and goes on to crash somewhere else – on the car that just happened to be passing by the piggery or on kids in the playground down the road – rather than on land owned by the irate owner of frightened cows, pigs or horses. We can expect to see some claims in court before too long.

One response is that courts will continue to balance notions of public and private benefit, along with traditional recognition of responsibilities. Use a drone in a way that is negligent and results in injury to property or people? You’ll face civil and criminal sanctions. Fly in restricted airspace, eg over defence facilities? Face exemplary prosecution. Invade someone’s privacy? You risk civil and/or criminal litigation, depending on where you live.

Ultimately we need to move towards a coherent principle-based regime, not one based on whether bugs ‘n’ birds have eyes, rotors or wings.