Droning on

Droning on
A number of businesses have teased customers in the past year or so with the suggestion online orders could be delivered by unmanned drones. We’ve had the Burrito Bomber — self-dubbed as “the world’s first airborne Mexican food delivery system,” — and variants such as the LobsterCopter, TacoCopter, and, most recently, Amazon.com Inc.’s Octocopters.

Most of these have been greeted with a healthy dose of skepticism south of the border, largely due to the strict United States Federal Aviation Administration rules governing the use of civilian drones. In this country, however, commercial organizations can already apply to Transport Canada for licences to use drones or “unmanned air vehicles.”

Transport Canada’s web site states UAVs currently operate in “diverse environments,” including research, mineral exploration, police surveillance, border patrol, survey and inspection of remote power lines and pipelines, traffic and accident surveillance, emergency and disaster monitoring, cartography and mapping, search and rescue, agricultural spraying, aerial photography, promotion and advertising, weather reconnaissance, and fire fighting monitoring and management.
Canada’s vast land mass and resulting infrastructure challenges could make drones an increasingly attractive proposition for companies with a large geographic reach as the technology continues to improve. Lawyers will certainly be required to help clients navigate the complex legal landscape.

But is this landscape keeping pace with technology and demand? Not according to Joe Barnsley, an aviation lawyer at Winnipeg’s Pitblado LLP. “Regulations aren’t developed at all. It’s a real issue for a whole number of reasons. It’s really safety regulation and airspace regulation where the issues arise,” he explains, equating the flying of drones with “driving down the road and sharing it with a bunch of radio-controlled cars, where the person controlling the vehicle is nowhere in sight.” Governments have failed to adequately address what happens if the motor stops running — sending the drone crashing to the ground — or to fully deal with the risks of drones colliding with other aircraft, he warns.

The Canadian Aviation Regulations, authorized under the Aeronautics Act, define a UAV as a “power driven aircraft, other than a model aircraft, that is operated without a flight crew member on board.” Part VI of the regulations covers general operating and flight rules. Section 6.01 deals with airspace, and ss. 602.12 to 602.18 deal with low-level flight.

The regulations are split into two categories. The first is used in reference to “flight crew licensing, the classification of aircraft as an aeroplane, a balloon, a glider, a gyroplane, a helicopter or an ultra-light aeroplane.” The second refers to the “certification of aircraft, a grouping of aircraft based upon intended use or operating limitations such as normal, utility, aerobatic, commuter and transport.” As Barnsley points out, “There is no category in which UAVs fit, so there is no clear regulation.”

There are certain restrictions, however. Section 602.41 prohibits anyone from operating a UAV in flight “except in accordance with a special flight operations certificate or an air operator certificate.” To obtain a certificate, applicants must submit information such as the dates and times of the proposed operation, a detailed plan describing how the operation shall be carried out, and an emergency contingency plan. A separate certificate is required if the applicant wishes to fly the UAV out of sight.

The system is not overseen centrally, and Transport Canada was unable to provide information on applicants or even the number of certificates issued when requested by Canadian Lawyer. A spokeswoman said: “Provided an applicant can demonstrate that they are capable of conducting a safe operation, by ensuring the safety of persons and property on the ground and other airspace users, the minister will approve the SFOC.” The department is not currently considering the approval of “fully autonomous UAVs,” meaning operations that “would not permit/allow the pilot to intervene in the management of the flight,” she added.

While applicants must apply for certificates 20 working days before the proposed UAV operation, Transport Canada is not obliged to review an application or issue a SFOC within those 20 working days. The uncertainty about when a SFOC will be issued is a problem, according to Sarah Fitzpatrick and Kenneth Burnett, who practise at Miller Thomson LLP in Vancouver. In an article published on the Canadian Bar Association’s web site, they wrote: “A lot of jobs are date-specific and if each job requires a separate SFOC, then there is a possibility that a SFOC will not be issued in time.”

The requirement for a certificate to be issued each time a drone is to be deployed, and the absence of any guarantees as to when, or whether, the application will be granted, would undoubtedly thwart Amazon’s idea to deliver last-minute purchases within 30 minutes.

Transport Canada’s web site admits: “While the ultimate goal is to ‘normalize’ UAV operations within civil airspace, the industry technology is not mature enough, and the regulatory structure is not in place, to support routine operations.”

Despite the apparently sketchy guidance, UAV industry groups are determined to press ahead. A group of UAV operators are developing a restricted airspace of 800 square nautical miles in Foremost, Alta, as a training and development area, with the aim of encouraging Transport Canada to allow more people to use drones out of sight. Canadian Centre for Unmanned Vehicle Systems chief executive officer Sterling Cripps says this would help energy firms monitor pipelines more effectively. “If you have 30 kilometres of pipelines you can maybe only get five km at a time. Some are taking small bites at a time. The day is coming where the regulatory bodies will allow us to fly beyond line of sight,” he says. Tellingly, he states, while UAV operators must meet certain requirements, “at this point in time there aren’t any regulations.”

The scarcity of aviation safety laws covering UAVs is also highlighted by the CQFA, or Services aux enterprises Air Carrier Training, which operates just outside Montreal and provides training to the aviation industry. Its web site states: “UAV flying has not yet been clearly defined in the Aeronautics Act. Neither the courses’ content, the requirement to take such courses, or even the legal status of UAV pilots are addressed in the Canadian Aviation Regulations.” There is no age criteria for UAV pilots, it adds, and no requirement to obtain a pilot medical certificate.

There has been some recognition the situation needs to improve. In 2007, a federal government working group produced a report stressing the future importance of drones to the Canadian economy and the need for stronger regulations. It stated: “Canadian industry is currently capable of becoming a world leader in unmanned aircraft system technology and services. The working group is unanimous in the view that the rapid development by Transport Canada of regulations and standards is critical to exploit this technological advantage for domestic and export opportunities.” Progress has been slow. A new working group was established in 2010 and its final report is not due until 2017.

Aviation regulations are rarely developed quickly, points out Barnsley, who also suggests the cost of running drones would be prohibitive to most businesses. However, the costs are decreasing and a small camera-carrying drone can be operated for under $350 by anyone with a smartphone, highlights “Drones in Canada,” a March 2013 report by the Office of the Privacy Commissioner of Canada.

The report says: “It is not far-fetched to imagine that drones could be used for aerial mapping services; the television and film industries could use drones to shoot advertisements or movies; or they could be used by real estate agents to sell property.” But laws and regulations currently do little to address the privacy implications of these “hovering data-collecting robots,” it warns.

Commercial UAVs are covered by the Personal Information Protection and Electronic Documents Act and are subject to the same requirements as with any other data-collection practice. But, the report says, “it may prove challenging for individuals to produce sufficient evidence in support of their complaint under the Privacy Act or PIPEDA, particularly when dealing with unmarked or covert surveillance.”

Privacy lawyer David Fraser, a partner at McInnes Cooper’s Halifax office, believes some of the privacy fears are unfounded and just “techno-panic.” He says: “When you have a new technology that could disrupt things, there’s a tendency among a large group in society to start thinking about worst-case scenarios.”
After all, s. 8 of the Canadian Charter of Rights provides for a reasonable expectation of privacy, and the same rules that apply to businesses using cameras are going to apply to drones operated by commercial entities.

Businesses should still be wary. An energy firm could monitor a pipeline on public land using a drone, and keep an eye out for potential protestors, or industrial saboteurs, just as it is entitled to employ a security guard. But information must not be recorded, and facial recognition software, or anything revealing individuals’ characteristics, cannot be used in these circumstances, says Fraser. “The presence of a drone isn’t necessarily [a legal issue], but additional components could take it to somewhere that’s problematic.”

Similarly, an unmanned drone operated by Amazon to deliver gifts would be unlikely to violate privacy laws on its own. But problems could arise if it were to collect video footage, or check whether residents were home by pointing cameras at windows.

More urgently, Fraser believes a debate is needed over the appropriate use of drones by police agencies. “Laws do very little to regulate how police agencies collect and disclose personal information,” he says. “The provisions are so broad you could fly through them.”

He suggests if the G20 were held again in Toronto next year, police would very likely use drones to monitor protesters. He questions whether the rules would preclude the use of weaponized UAVs, asking: “We wouldn’t allow a police helicopter in Canada to have missiles but would we allow a drone to have that sort of thing? I would say no, but has that line been drawn?”

A November 2013 report, “Watching Below: Dimensions of Surveillance-by-UAVs in Canada,” drew a similar conclusion regarding the use of police drones. The report, by Block G Privacy and Security Consulting, said: “Until national policies are established or court challenges arise . . . the use of UAVs by Canadian policing bodies will likely continue to be somewhat ad hoc and primarily constrained by the SFOC process and [law enforcement agencies’] interests in avoiding public pushback of UAV-based practices.”

Amazon’s announcement last year may remain pie in the sky for now, but it may not stay that way for long. In the U.S., where regulations are less developed than in Canada, Congress has passed legislation calling on the Federal Aviation Authority to write rules by 2015 for the use of commercial drones. The FAA estimates 7,500 commercial drones will be in use within five years of a regulatory framework being set.

UAV technology is also marching forward, having advanced to the point where some drones can remain airborne for several days and fly at altitudes of up to 25,000 feet, while others are able to imitate plants and animals such as birds. Express delivery company DHL International GmbH has already carried out test drone flights in Germany, and rivals FedEx and United Parcel Service of North America Inc. are also said to be actively exploring the idea of UAVs.

Canada’s relatively permissive regulatory structure offers a good platform from which to exploit the growing interest in commercial drones, but aviation and privacy laws may seem in need of tightening up and clarifying.

All this could well offer lawyers an emerging line of business, especially those who can attract energy sector clients and who have strong credentials in aviation, transport, or privacy law. Like Cripps, Barnsley believes “pipeline surveillance is probably going to be where we see this developing. It’s one of those nice little niches that would be really fun to work through.”

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