We wrote to DGCA with recommendations on the Draft Unmanned Aircraft System (Drones) Rules, 2020 #SaveOurPrivacy

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tl;dr

We wrote to the Directorate General of Civil Aviation (DGCA) providing them with certain recommendations for the Draft Unmanned Aircraft System Rules, 2020 which were made public for consultation on June 2, 2020. Our main recommendations were the inclusion of certain privacy protecting measures in the rules regulating aerial photography and the introduction of a new rule which would prohibit aerial surveillance for law enforcement purposes.

The Draft UAS Rules, 2020

The draft Unmanned Aircraft System Rules, 2020 were notified on June 2, 2020. An unmanned aircraft system includes a unmanned aerial vehicle (UAV) or drone, a ground based controller and a system of communications between the two. These will apply to the possession of drone, engagement in importing, manufacturing, trading, leasing, operating, transferring or maintaining a drone in India or to all UAS for the time being in or over India.

We have previously sent a legal notice (Ref. No. 143/2019) to the DGCA on December 27, 2019 on the illegal use of drones by the Delhi Police during the December 2019 protests. However, in February we came across reports that illegal use of drones was ongoing. As a result we filed a Right to Information request (RTI Reference No. DEPOL/R/E/20/01005) dated February 14, 2020 with the Delhi Police inquiring about their use of drones. In their reply (No.953/RTI Cell/North East District) dated March 13, 2020, the Public Information Officer (PIO) of the North-East District, Seelampur, Delhi Police confirmed that they have been using drones.

On May 2, 2020 the MCA issued a conditional exemption wherein they allowed government authorities to procure drones for COVID-19 related activities which included aerial photography and surveillance. In response to this conditional exemption and the ongoing illegal use of drones by the Delhi Police for surveillance, we sent a representation (Ref. No IFF/2020/141) to the MCA and DGCA asking them to recall the conditional exemption and to commence an investigation into the ongoing illegal use of drones by the Delhi Police for mass surveillance.

IFF’s recommendations

We have made two recommendations to the DGCA on the draft UAS Rules, 2020. Firstly, we have recommended certain additions into Rule 35 of the draft rules which talks about aerial photography by UAS. We have recommended that certain privacy protecting measures be added to the rule to ensure that it protects the personally identifiable data of any individual whose image is captured. Our second recommendation is to introduce a new rule which addresses aerial surveillance by UAS that is specifically used by law enforcement agencies.

Currently Rule 35 reads as follows:

Photography from UA in flight. — (1) An imagery may be captured by an unmanned aircraft except in the non permissible area after ensuring the privacy of an individual and his property.

While the rule does mention ensuring the privacy of the individual and his property, it fails to provide any measures which will ensure the privacy to be protected. Hence, it is our recommendation that the following privacy protecting measures be included in Rule 35.

(2) Imagery may be captured by an unmanned aircraft of an individual and/or their property when it is personally identifiable only after taking their consent. For recording this consent, the appropriate government may notify a form contained with the schedule.
(3) The individual who is providing consent should be informed of the purpose of the photography. A special declaration should be provided if the photography is being done by government authorities. The special declaration should provide the individual with a list of all authorities with whom the personal data collected could be further shared.
(4) The personally identifiable data collected should only be stored for the period of time necessary to fulfill the purpose of the photography. Subsequently, the personally identifiable data should be deleted.
(5) The personally identifiable data collected should be processed lawfully, fairly and in a transparent manner and only for fulfilling the purpose as disclosed to the individual. It should not be further processed in a manner that is incompatible with those purposes.
(6) The personally identifiable data is processed in a manner that ensures appropriate security of the personally identifiable data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures including security and technical audits. Such practices should be documented within a cyber security policy and made available to persons whose personal identifiable information is captured.

Our second recommendation is related to the insertion of a new rule which would prohibit aerial surveillance by drones for law enforcement purposes and would also prohibit the integration of facial recognition technology with drones for the purpose of surveillance. This recommendation was made especially because in January, 2020 we came across reports that the Delhi Police used facial recognition and drone technology to surveil the Republic Day parade.

Insertion of these rules are necessary in order to regulate aerial surveillance from occurring which leads to the collection of personally identifiable data of individuals over a large field of vision. This requires consistency to comply with the decision of nine judges of the Hon’ble Supreme Court of India in Justice K.S. Puttaswamy vs Union of India (“right to privacy case”). It is important to consider that the privacy right under the judgement applies even in public spaces and to acts of aerial surveillance since as per the right to privacy case. This is given that it emerges from principles of individual autonomy and there exists continuing control for individuals over the personally identifiable information gathered over them.

Important Documents

  1. Covering letter and substantial response to the DGCA on the Draft UAS Rules dated July 3, 2020 (link)
  2. The Draft Unmanned Aircraft System Rules, 2020 (link)
  3. The DGCA must take urgent action against the illegal use of surveillance drones dated December 28, 2019 (link)
  4. Delhi Police admits to using drones on civilians without any publicly available legal guidelines in place dated March 27, 2020 (link)
  5. The ongoing illegal use of drones for mass surveillance by the Delhi Police needs to be investigated (link)
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