By Aditya Srivastava, and Shereen Moza, IInd year B..A. LLB. (Hons.) students at RGNUL, Patiala.
Introduction
Recently the Central Government released The Drone Rules, 2021 reviving the debate around the regulation of unmanned aerial vehicles in the Indian airspace and their subsequent implications making it a hotly debated topic. India has been treading into unknown waters by venturing into the novel digital technologies to carve a niche in the global world. While India’s ambition to be a modern digitalized nation is appreciable, but it being oblivious to the absence of structural frameworks and legal lacunae to support the same is a constant hindrance.
Drone as defined in the aforementioned Drone Rules, 2021 means “an aircraft that can operate autonomously or can be operated remotely without a pilot on board.”[1] Rule 5(a) of the Drone Rules, 2021 classifies drones which weigh less than 250 grams as nano drones which can be deployed for surveillance owing to their small size. The Delhi police have acknowledged using drones procured from open markets amid the Delhi Assembly elections and also the city’s catastrophic riots in February 2020. Drones were also deployed to observe anticipated civil unrest during the Ram temple’s construction in Ayodhya. These surveillance drones can record data on SD cards and provide a live broadcast to the officer controlling the Unmanned Aerial Vehicles (UAVs). Drone projects have begun in Hyderabad and throughout Kerala, with the latter reportedly recruiting private individuals to control rented UAV as a component of the monitoring activities. The Indian Railways purchased drones to monitor station boundaries. These cases are consistent with an increasing global trend of deploying drones as enforcement assets.
These actions call for an assessment of UAV regulations in India in light of ensuring safeguards for citizens’ privacy along with data protection. This blog entails to critically analyze the interface between UAVs and the grave issue of privacy which needs assessment on priority basis.
The Question of Privacy
Intrinsic provisions, specifically Rule 27(h)[2] and Rule 39(2)[3] of the UAS Rules pertaining to privacy and protection of data collated by the drone, are absent from these proposed rules. These rules These proposed guidelines result in a self-regulatory paradigm with no mandatory privacy safeguards or overarching data protection law, reversing years of gradual privacy safeguard enhancements such as the landmark Puttaswamy judgment[4] and the Personal Data Protection Bill, 2019.
Taking the aforementioned example of Delhi police monitoring Delhi elections, a key concern with this large – scale data gathering by UAVs has been that the state gathers data on civilians indiscriminately. Any and every individual that is within the perimeter of a green zone, criminal intention or not, will fall under this surveillance, regardless of consent.
A critical point of scrutiny against the Drone Rules, 2021 is the liberalization of regulations imposed upon the usage of drones and the draconian power vested with the State for surveillance. Fundamental defense for the State to justify surveillance through UAVs is to safeguard the integrity and sovereignty of the nation and to secure national interest, as can be correlated with the US jurisprudence that established the defense of the Mosaic Theory, while deciding upon the legality of GPS surveillance. The Mosaic Theory in layman’s language is the collection of small ‘mosaics’ that can be viewed as tiles of data that may seem innocent but the collection of these ‘innocent data mosaics’ can assimilate a larger ‘damaging picture’. Furthermore, the utilization of UAVs through exemptions in the lack of a reliable data privacy legislation is yet another evidence of promoting technology to aid in governmental operations and duties in absence of clear privacy law.
The Delhi Police had used drones to monitor the rigorous following of COVID guidelines in containment zones. In semblance, the deployment of drones by the Paris police to impose COVID-19 lockdown limitations was outlawed and ruled as a violation of personal data protection regulations by France’s Supreme Court for Administrative Justice. The court reasoned that drones with a range of approximately 100 metres may technically identify individuals, placing them at risk of being used in subsequent violation of right to privacy that was established as a fundamental right by a nine-judge bench in the Puttaswamy judgment.
Assessment of UAVs through the Glass of the Three-Pronged Test
- Legality
The fundamental limiting criterion against privacy restriction is legality. The state’s action to limit privacy should be in accordance with an established statutory regulation. However, under the Drone Rules of 2021, majority of monitoring is conducted via executive notification, in absence of procedural safeguards. As a consequence, a comprehensive legislation regarding data privacy and overseeing drone surveillance specifically is required.
- Legitimate Aim
The majority of government drone surveillance is aimed to maintain law and order. However, the evidence suggests negligible improvement in law and order. Research on the efficacy of mass surveillance systems like CCTV cameras, which have been conducted all around the world, are testimony to the aforementioned conclusion. A regulatory framework for data protection in relation to drone monitoring must be implemented to achieve the envisioned legitimate aim.
- Proportionality
The government should use the least invasive method possible. Drone surveillance should only be used for specific offences and when less intrusive alternatives are unavailable. The Personal Data Protection Bill, 2019 vests the law enforcement authorities with the power to exempt themselves from the restrictions at the data gathering and processing stages which can lead to deploying drone surveillance for any purpose, including trivial offences. This can be detrimental and extremely intrusive.
Way Forward
Existing moral and legal norms, as well as their adaptation to rapid technological changes, should be used to establish an efficient system of governance for Drones in India. As it enforces its regulatory structure, India must also take precedential value from frameworks in other nations in order to incorporate their best practices. Any guidelines on their own are insufficient; guaranteeing conformance is required. This would imply that any recommendations that may be published by nations and international organizations must be transformed into institutional and legislative documents with binding impact on government agencies. However, ethical drone conduct rules and norms are critical initial efforts in this direction. Concerns about lack of safeguards, monitoring, and accountability have arisen as a result of the introduction of new technologies and their use through broad exemptions from data protection standards. The Indian law enforcement agencies getting significant exemptions from India’s drone rules whilst being oblivious to privacy and data protection measures serves as a grave concern for unbridled State control.
Sources:
- Justice K. S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
- The Drone Rules, 2021, Gazette of India, pt. II (July, 2021).
- Unmanned Aircraft System Rules, 2021, Gazette of India, pt. II (March, 2021).
[1] Drone Rules, 2021, Gazette of India, pt. II (July, 2021) Rule 2(h).
[2] Unmanned Aircraft System Rules, 2021, Gazette of India, pt. II (March, 2021) Rule 27(h).
[3] Unmanned Aircraft System Rules, 2021, Gazette of India, pt. II (March, 2021) Rule 39(2).
[4] Justice K. S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.