TThe Drone Rules, 2021, based on “trust, self-certification and non-intrusive surveillance”, were unveiled by the Ministry of Civil Aviation. The new rules aim to regulate drone-related activities so that they do not pose a risk to the safety or security of people and property. The new rules will replace the Unmanned Aircraft Systems Rules (UAS Rules), 2021 promulgated in March 2021.
With the recent terrorist attacks in Jammu, where a drone was used to drop explosives on an air base, drone technology is becoming an area of critical interest. Over the years, the use of drones in the civil and commercial spheres has multiplied. India has chosen to embrace the new technology as a key driver of trade, law and order, job creation and development activities. The new rules embrace ease of doing business, research and development of drones, a simpler registration process and digital platforms. However, it is imperative to balance drone technology with the privacy rights of citizens. This article aims to weigh the new drone rules on the balance of privacy and data protection.
Framework proposed under drone rules, 2021
Based on the weight, drones have been classified into different categories such as nano, micro, small, medium and large. A Digital Sky platform is planned under the supervision of the Ministry of Civil Aviation for activities related to the management of drones in the country. The central government will further notify safety devices to be installed in a drone, which may include “No Clearance – No Take Off” (NPNT) equipment, real-time tracking beacon, geolocation capability. In addition, no one should fly a drone without a unique identification number. The rules propose dividing India’s airspace into three zones for drone operations: the green zone, the yellow zone and the red zone, which prescribe varying degrees of restrictions on the operation of drones.
Law enforcement and drone use in India
In recent years, law enforcement has relied on drones to maintain law and order. Delhi police have used drones to monitor activity during anti-CAA and farmer protests. He also admitted to renting drones on the open market during state assembly elections and riots in the Northeast District. Mumbai police have deployed drones to monitor crowded areas like Dharavi. Police in Kerala and Punjab used drones during the lockdown to identify those who broke protocols, with elders even relying on individuals to operate third-party drones.
In April 2021, a conditional exemption from the UAS (Rules), 2021 was granted to government agencies under the Ministry of the Interior and to all-state police forces / UT (Ministry of Civil Aviation 2021). Wide exemptions have been regularly granted to law enforcement agencies for the conduct of surveillance.
Eye In The Sky: The Privacy Issue
Although new technologies offer endless growth potential, there is always a concern about protecting user privacy and data. Modern drones are equipped with automated facial recognition capabilities, high-resolution cameras, heat and motion sensors, and large storage capacity. Although drone technology is unique in its application, an individual has no control over the eye in the sky hovering above.
Unmanned Aircraft Systems Rules (UAS Rules), 2021, while mentioning the role and responsibilities of an operator, also mentioned that drones should fly “while ensuring the privacy of a person and their property during operation” (rule 35). Likewise, Annex VI (Rule 29) imposes on the drone operator the responsibility to protect privacy and his property.
The current 2021 drone rules have replaced the 2021 UAS (rules) to make it easier to use drones in India. However, absent in these rules is a mechanism for the privacy of citizens and the protection of data collected by drones. Frankly speaking, the new rules don’t even mention the word ‘privacy’ throughout the project. This therefore raises the question of whether a rhetorical premise of simple ‘trust, self-certification and non-intrusive surveillance’ will be sufficient to ensure the privacy and protection of citizens’ data, without mandatory privacy guarantees or a comprehensive privacy law. data?
According to article 23 of the rules, “All state governments, administration of Union territories and law enforcement agencies must have direct access to the data available on the digital platform. of the sky.”
Article 32 further provides for a general exemption by declaring: “The central government may, by a general or special written decree, exempt any person or category of persons from the application of these rules, in whole or in part, subject to conditions that can be specified in that order.
Puttuswamy and the draft law on the protection of personal data, 2019
In 2017, the Supreme Court, in a landmark judgment of nine judges ‘Judge KS Puttuswamy (Retd) v Union of India & Ors’ recognized privacy as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by the party III of the Constitution. While elaborating on various facets of privacy and fundamental rights, the Court established various tests that should be applied to the violation of privacy. This test has been established ‘reasonableness’ should be applied to the invasion of privacy in the context of arbitrary state action. Likewise, the breaches of privacy of Articles 19 and 21 must be ‘fair, just and reasonable’. In addition, some claims of confidentiality deserve the “The highest level of scrutiny” and can only be justified in the event of “Compelling state interest”. The court also proposed that the violation of life and liberty should meet the standards of “Legality”, “necessity”, “legitimate objective” and ‘proportionality’.
The Personal Data Protection Bill, 2019 was introduced to protect personal data as an essential aspect of information confidentiality, while recognizing the right to privacy as a fundamental right. The bill sets out the obligations of the data trustee, subjecting the processing of personal data to certain limitations of purpose, collection and storage. It further makes the consent of an individual necessary at the start of data protection. It’s hard to fathom, however, how to get consent from every individual in a crowd or procession – with a drone hovering overhead.
Article 35 of the bill gives the central government broad powers to exempt government agencies from the provisions of the bill, if deemed necessary, for reasons of public order, sovereignty and state security. . The reasons should be recorded in writing, subject to the procedures, safeguards and oversight mechanisms applicable to the exempt agency.
The Personal Data Protection Bill, 2019 has been awaiting consideration for over a year by a Joint Parliamentary Committee (JPC) and is only expected to submit its report during the current winter session of Parliament. . It is hoped that some provisions will be reformulated to address the loopholes and radical exemptions of the current draft, and that more stringent privacy protection mechanisms will be strengthened.
Looking at the Drone Rules, 2021, it is evident that there is a clear lack of additional safeguards regarding drone data collected and processed by law enforcement. The government can potentially use drones for mass surveillance exercises without providing adequate privacy protection for citizens. The Rules do not adhere to the various principles set out in Puttuswamy judgement. They are certainly not in keeping with the confidentiality provisions of the data protection bill, with the exception of exemptions granted to government agencies. The Regulation does not have a saving clause or specific provision that places them within the scope of a broader data protection bill.
In the future: global drone hub or Orwellian state?
The Covid -19 pandemic has shown that civilian use of drone technology can be a game-changer when it comes to managing a crisis of this magnitude. During the lockdown, drones were used to spray disinfectants on public places. Drones have been effective in monitoring rail tracks, highway patrols, and traffic management in large cities. In some areas, drones are deployed to spray pesticides on crops. Experimental studies are underway to deliver drugs and vaccines via drones to remote rural and tribal areas of the country. During these times, drone technology can be a successful example of cooperative federalism, as health is a matter of state.
Drones can be important creators of jobs and economic growth due to their reach, versatility and ease of use, especially in remote and inaccessible areas of India. Given its traditional strengths in innovation, information technology, frugal engineering and huge domestic demand, India has the potential to become a global drone hub by 2030.
Privacy, being a fundamental right, is paramount. Broad exemptions in the Drone Rules, 2021, combined with a lack of a specific privacy protection mechanism would pose a threat to privacy. Government agencies should be specifically included in the definition of “important data trustee”, under the Personal Data Protection Bill, 2019. The privacy tests established by the Supreme Court in Puttuswamy must be respected. Additionally, the drone rules should have established a transparent process for hiring and purchasing drones from third parties.
It is incumbent on our lawmakers to ensure that India does not become an ‘Orwellian state’, where the citizens are under the constant surveillance of the authorities and repeatedly reminded by the slogan “Big Brother is watching you.”
Parikshit Goyal is a practicing lawyer, opinions are personal.
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