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Published on : Jan 08, 2015
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Managing Drones' Privacy and Civil Liberties Impacts Roger Clarke Chair, Australian Privacy Foundation Xamax Consultancy Pty Ltd, Canberra Visiting Professor in Computer Science, ANU, Canberra Visiting Professor in Cyberspace Law & Policy, UNSW, Sydney http://www.rogerclarke.com/SOS/Drones-PLCI {.html, .pdf} UAV Triple Zero Summit Rendezvous Grand Hotel, Melbourne – 23-24 July 2014

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http://commonsenseja.wordpress.com/2014/02/13/ rogers-clarke-drones-in-a-flight-of-fantasy/

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http://www.jamaicaobserver.com/news/Agriculture-ministry- mulls-drones-to-combat-fish-poachers_16027005

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Drones – Game-Changing Factors Substantial increase in capabilities Payloads Capacity to carry cameras Much more useful to business and government Much more attractive to consumers Much lower entry-points Costs, Expertise, Effort Model Aircraft Clubs are no longer the venue Street Mentality (cf. remote-controlled model cars)

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Managing Drones' Privacy Impacts Agenda The Australian Privacy Foundation Privacy Behavioural Privacy Drones' Privacy Impacts The Seriously Inadequate Protections Policy Measures Needed Practical Measures You Can Take Privacy Impact Assessment (PIA)

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Australian Privacy Foundation (APF) The primary association dedicated to protecting the privacy rights of Australians Formed 1987: Patrons (Cowen, Kirby, Evatt) Advisory Panel of 20 (Burnside, Fraser, Jones, Kostakidis, Robertson, Stott Despoja, ...) > 600 policy statements, submissions to Parliaments, government agencies, industry associations, corporations Teams with human and consumer rights orgns http://www.privacy.org.au

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Privacy The interest that individuals have in sustaining a 'personal space', free from interference by other people and organisation http://www.rogerclarke.com/DV/Privacy.html http://www.rogerclarke.com/DV/Intro.html

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Privacy The interest that individuals have in sustaining a 'personal space', free from interference by other people and organisation ... of the Physical Person Safety, biometrics, body organs, body tissue, body fluids, ... ... of Personal Communications Voice, phone, email, chat, ... ... of Personal Data Data collection, storage, retention, use, disclosure, dataveillance, ... ... of Personal Behaviour Your activities, movements, preferences, associations, ... ... of Personal Experience Your reading, viewing, interactions, social networks, ... http://www.rogerclarke.com/DV/Privacy.html http://www.rogerclarke.com/DV/Intro.html Dimensions of Privacy

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Behavioural Privacy Sensitive Matters Sexual preferences and habits Religious practices Political activities Private places Public places Surveillance Visual, electronic, travel, ... Visual Surveillance – http://www.privacy.org.au/Papers/PS-CCTV.html Surveillance by the State – http://www.privacy.org.au/Papers/PS-SS.html Privacy and the Media – http://www.privacy.org.au/Papers/PS-Media.html

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The Prescott Case – Sydney, 2 Oct 2013 Rhianna roadie, Edward Prescott, flies his drone from a wharf West of Circular Quay The drone control malfunctions It auto-redirects back to its point-of-origin It hits two Sydney Harbour Bridge girders, lurches across 6 lanes, a few metres above traffic, hits another girder, crashes on a railway line A train-driver stops and picks it up A naval event is in progress Prince Harry is in town International coverage follows (London, Milan) http://www.smh.com.au/nsw/mystery-drone- collides-with-sydney-harbour-bridge-20131004-2uzks.html http://www.liveleak.com/view?i=661_1385456831

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The Prescott Case – Sydney, 2 Oct 2013 http://www.smh.com.au/technology/sci-tech/i-dont-know-whether-its-a-bomb-or- not-train-driver-flummoxed-after-drone-hits-sydney-harbour-bridge-20131126-2y76m.html http://www.liveleak.com/view?f=dccca42c2905&ajax=1&player_width=512 &player_height=384&iframe=true&width=550&height=420

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Drones' Impacts – Physical Privacy More accidents, due to lower-quality product engineering, training and operations, increased air traffic, more areas of congestion Compromise of emergency services operations, arising from: contention for physical space contention for spectrum (intentional and accidental jamming)Scope for aggressive and hostile use of drones ('weaponisation'), incl. delivery of explosive and inflammable payloads, carriage of weaponry, use in 'kamikaze' mode Risk of the application of military capabilities in civilian contexts: by law enforcement agencies by mercenary corporations that offer 'security' services, in war zones, but increasingly outside them as well

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http://www.dailylife.com.au/technology/technology-news/ privacy-fears-as-drones-move-into-mainstream-20130217-2elcj.html

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''Kate Middleton and many other people besides can rest assured that their bare breasts are fair game, anywhere, any time,'' the Australian Privacy Foundation's Roger Clarke warned, in a week when snaps of the pregnant Duchess in a bikini made international headlines. Last year a New South Wales resident filed a complaint after spotting a drone hovering outside their bedroom window, Australian Privacy Commissioner Timothy Pilgrim said. http://www.smh.com.au/technology/technology-news/ privacy-fears-as-drones-move-into-mainstream-20130217-2elcj.html

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Drones' Impacts – Behavioural Privacy Surveillance is more intrusive: A viewing-point in the air overcomes obstructions The point-of-view can be moved, and moved quickly Surveillance is more economic, for organisations and individuals That enables more intensive surveillance (i.e. more of the time), and more extensive surveillance (i.e. in more places) Improved endurance enables persistent surveillance A much greater degree of automated monitoring is feasible Multiple sources and live feeds can be used at the same time Pursuit of a surveillance target becomes feasible The enforcement of surveillance laws becomes more difficult, because so many organisations and individuals breach them

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Series in CLSR 30, 3 (Jun 2014) 230-305 Understanding the Drone Epidemic http://www.rogerclarke.com/SOS/Drones-E.html What Drones Inherit from Their Ancestors http://www.rogerclarke.com/SOS/Drones-I.html The Regulation of Civilian Drones' Impacts on Public Safety (with Lyria Bennett Moses) http://www.rogerclarke.com/SOS/Drones-PS.html The Regulation of of the Impact of Civilian Drones on Behavioural Privacy http://www.rogerclarke.com/SOS/Drones-BP.html Drones' Challenges to Public Safety http://www.rogerclarke.com/SOS/Drones-PSA.html

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Emergency Response Applications, and Privacy There are positive impacts on personal safety, and hence on privacy of the physical person Negative privacy impacts are largely incidental Negative privacy impacts are largely outweighed Negative privacy impacts are manageable, but iff: use only where an 'emergency' demonstrably exists, cf. public events / protests / demos 'response', not anticipation / preemption the surveillance is no more intensive, extensive and persistent than is justified by the circumstances subject to transparent pre- and post-controls opportunistic use of data is precluded

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Public Scepticism about Emergency Response Applications as a Wedge "drones to protect ... marine space ... "drones ... fitted with cameras ... will assist in detecting and deterring poachers, as well as assisting with search and rescue at sea"

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Contemporary Regulation of Surveillance Tort Interference with Real Estate (Trespass, Nuisance) Interference with the Person (Trespass, Obstruction, False Imprisonment, Assault, AVOs / PSIOs) Interference with Emotional State (Stalking, Negligence) Deceitful Behaviour (Misrepresentation, Deceit, Passing-Off) Surveillance Statutes Telecomms (postal, TIAA, computer offences) Aural/Visual Surv Devices (Clth, State, Territory) Pornography, Anti-Voyeurism Other Statutes (Copyright, Trademarks, Media Law, Human Rights, Privacy) Media Codes (APC, ACMA) Direct Action (protecting the public, and the media) http://www.anu.edu.au/Roger.Clarke/DV/MSR.html

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State Surveillance and Listening Devices Acts Vic, WA, NT (1998-2000) & NSW (2007), Qld Surveillance Devices Acts Prohibition of surveillance only of a ‘private activity’, except: by someone who is a party to the activity if the activity is happening outside the building; or if the circumstances indicate that the parties do not care if they are seen SA, Tas, ACT 1971, 1972, 1990 Prohibition of aural surveillance of a private activity, except ... Workplace (NSW, ACT) Must be merely declared Covert only with a magistrate's approval Anti-Voyeurism laws may put toilets, bathrooms, change-rooms off-limits http://www.privacy.org.au/Resources/PLawsST.html

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The Regulation of Surveillance General Principles 1. Justification 2. Proportionality 3. Openness 4. Access Security 5. Controlled Use 6. Controlled Disclosure 7. Controlled Publication 8. Non-Retention and Rapid Destruction 9. Review 10. Withdrawal http://www.privacy.org.au/Papers/PS-CCTV.html

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The Prescott Case – Sydney, 2 Oct 2013 The Police gave him back his damaged drone He posted the video it had captured on the Web CASA provided some quotes to the media: "There are regulations and fines attached ... hundreds of dollars" "[Drone pilots] must keep them at least 30m away from any people, buildings or structures" "Airspace around the Harbour Bridge is restricted" "Check with local council where they can be used" Long after Prescott left, CASA levied an $800 fine http://www.smh.com.au/nsw/mystery-drone- collides-with-sydney-harbour-bridge-20131004-2uzks.html http://www.theage.com.au/technology/technology-news/ river-of-blood-after-drone-hits-australian-athlete-20140407-zqruh.html

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THE civilian drone revolution in Australia has triggered calls from the Privacy Commissioner for a public debate about the "intrusive" technology as police investigate the potential of drones for crime fighting. "... there needs to be public debate about the use of this technology and whether current regulations are sufficient to deal with any misuse" http://www.smh.com.au/national/privacy-guardian-sounds-alarm -over-rise-of-flying-eyes-in-sky-20120912-25sog.html#ixzz37yce1aU0

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http://investigatemidwest.org/2014/03/21/ states-restrict-drone-use-because-of-privacy-concerns/ https://www.aclu.org/blog/technology-and-liberty/ status-2014-domestic-drone-legislation-states

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"[Re] Small Unmanned Surveillance Aircraft (SUSA) within the weight category 7 - 20 kg ... there will be a future need for their aircraft to be assessed for airworthiness in relation to operating within 150 m of a congested area [competencies, tech specs, outcome mitigation; assessment fee Stg 134 p.hr.] http://www.caa.co.uk/docs/33/InformationNotice2014115.pdf

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The Policy Response Technology Assessment? Only Europe has TA Agencies Only Norway has published anything Law Reform Commissions? Mention in an ALRC Privacy Study Risk Assessment? Little sign of corporate RA No sign of society-level RA What Policy Response??

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APF's Policy Statement on What's Needed 1. Comprehensive laws regulating surveillance activities, by all organisations and individuals 2. Provisions that relate to private places, but also provisions that relate to private space in public places 3. Provisions relating specifically to visual surveillance 4. Provisions relating to aerial surveillance, reflecting the additional vulnerabilities that arise from it 5. To the extent necessary, provisions relating to surveillance by means of drones 6. Provision of responsibilities, authority and resources to an appropriate agency ... http://www.privacy.org.au/Papers/PS-Drones.html

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Privacy as a Strategic Factor Privacy is a potentially severe impediment 'Privacy doesn't matter until it does' means that media breakouts will be uncontrollable Privacy-Sensitivity in Design and Operation has the potential to be a Differentiator Privacy-Sensitivity doesn't just happen A Privacy Strategy involves a proactive stance, an express strategy, an articulated plan, resourcing, monitoring against the plan http://www.rogerclarke.com/DV/PStrat.html http://www.rogerclarke.com/DV/APBD-0609.html

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Forms of Privacy Project Privacy Strategy Formulation Privacy Issues Analysis Deeper Privacy Impact Evaluation Methods: Privacy Law Compliance Assessment Data Privacy Impact Assessment (PIA) Internal Cost/Benefit Analysis Internal Risk Assessment Privacy Impact Statement Privacy Impact Assessment (PIA) Privacy Management Planning and Control Privacy Policy Statement (PPS) Prep, Review Privacy Audit http://www.privacy.org.au/Papers/PS-PIA.html

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Privacy Impact Assessment Key Considerations 1. Purpose 2. Responsibility 3. Timing 4. Scope (Dimensions, Stakeholders, Reference-Pts) 5. Stakeholder Engagement 6. Orientation (Process not Product; Solutions not Problems) 7. The PIA Process 8. Outcomes http://www.privacy.org.au/Papers/PS-PIA.html http://www.privacy.vic.gov.au/domino/privacyvic/ web2.nsf/files/privacy-impact-assessments-guide

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