Drones in South Africa: the good, the bad and the ugly

This article published by the South African Civil Society Information Service warns about the dangers of under-regulated drone use. It details the issues and matters that should be of concern to South Africans.

Drones. Many South Africans are likely to think of lazy worker bees or boring people when they hear the word. But Pakistanis, Afghanis or Yemenis are likely to think of the unmanned planes sent by the Barack Obama administration that rain death on their heads.

Obama’s drone strikes are summary, extrajudicial executions. The victims never having a chance to defend themselves against the accusations made against them, namely that they are terrorists. Furthermore, these strikes are not as surgical as Obama makes them out to be, with more evidence emerging of massive civilian “collateral damage”.

Obama’s drone strikes have been giving the technology bad press recently. But there are good drones too. Drones can be used to detect crop diseases early and assess disaster areas. Next generation drones may even be able to rescue people. Even journalists have been experimenting with them for newsgathering.

Drones are being tested in South Africa too, in spite of the fact that the Civil Aviation Authority (CAA) has declared their use illegal for the moment. However, they are also drafting regulations to govern drone use. Already, the City of Cape Town has expressed interest in acquiring a drone. To this end, it has been conducting drone tests too, including a test of a multi-rotor quadcopter manufactured by the multinational Skycap.

According to the company, the quadcopter was designed to address the unique challenges of monitoring rhino poaching, and it is capable of “hover and state” aerial surveillance stints of up to an hour. Compared to its brethren elsewhere, this drone has limited capabilities. However, if they are legalised, many other public and private entities may want drones too, and they are likely to grow in sophistication.

Civil society organisations elsewhere have been warning about the dangers of under-regulated drone use. What are the issues, and how concerned should South Africans be?

Up to this point, the high cost of flying helicopters has made the routine use of aerial surveillance prohibitively expensive. Drones, however, lower the cost of such surveillance, which is likely to make them more commonplace. This can pose a safety risk to manned aircraft. They can also malfunction, falling out of the sky, potentially injuring or even killing people.

As a result, more countries are regulating drones to ensure public safety, but the concerns don’t stop with safety only. Many drones are being equipped with highly sophisticated video equipment, night vision and zoom lenses. More sophisticated drones have the technological capabilities to identify human targets or intercept communications, and are barely audible.

Their unprecedented capacity for undetected, pervasive mass surveillance of people – including of actions that may not usually be discernible to the naked eye – makes it easier for governments to collect information on their citizens. The circumstances in which they do so need to be tightly regulated as they present a unique threat to privacy, and the potential for their misuse (against government critics, for instance) is great.

Drones can also contribute to a routinisation of surveillance in public life, which can alter peoples’ behaviour in undesirable ways. They can become more fearful and timid when they suspect that the government may be watching them (even if it isn’t). They can become yet another building block in the ever-expanding surveillance state and make people feel dehumanised.

People have a right to know the circumstances under which they will be watched by the government, and there needs to be specific, articulable reasons for drone uses. People also have a right to be left alone.

Drones are best deployed for disaster management situations, where public safety is more important than the right to privacy, and other functions where reasonable expectations of privacy do not arise. But governments enter into dangerous territory if they start to use them for dragnet policing practices, law enforcement fishing expeditions and even speculative, pre-crime type law enforcement, over private property, or to monitor protests.

As the American Civil Liberties Union (ACLU) has argued, drones are notoriously susceptible to mission creep, where drones are acquired for one set of stated purposes, and then used for another. So a drone that is acquired for utility management, for instance, could be used to keep tabs on public utility workers.

Drones with “hover and stare” capabilities can violate physical privacy by, for instance, filming a person without their consent and even knowledge, and informational privacy, in that this data may be used to expose things about people that they don’t want to be exposed. The fact that drones operate well above eye level gives them massively intrusive potential.

In June, a Seattle woman was surprised by a peeping drone hovering outside her apartment window when she had no clothes on, and she described her feelings of violation. Its operator claimed that the drone was shooting property. While a recent aerial video shot by a drone of couples having sex has almost turned aerial pornography (or “drone boning”) into a fine art, most people will probably not be amused if a drone caught them in the act without their consent.

In this regard, the City of Cape Town has stated that it intends the drone to be used for a variety of functions, such as preventing crime, including metal theft and land invasions, aerial mapping, surveying disaster areas, and checking the condition of various public utilities. This open list of intentions is worryingly broad.

Telling people to “trust us”, and belittling public concerns is not good enough. Arguing that communities do not need to be informed about the purposes of drone flights, as they are not informed about the purposes helicopter missions, misses the essential difference between helicopter surveillance and drone surveillance, as explained above.

As a study undertaken for the European Commission has argued, something as well-intentioned as infrastructure inspections can lead to the recording of personal data of people living in the vicinity, which is why public explanations of their uses are so important. This risk is increased in urban areas such as Cape Town.

Launching drones over crowds, such as during a land invasion (one of the City’s stated intentions) is a no-no, given the potential for injury or even death if the drone malfunctions and falls from the sky.

When it comes to drone usage, the ACLU has identified some very useful principles. They argue that there should be limits on their usage, including deploying them in law enforcement only with a warrant, and to collect evidence relating to a specific criminal act. Data should be retained only if there is reasonable suspicion that it contains evidence of a crime.

They also argue that usage policy should be determined by elected public representatives and not law enforcement officials. Policies governing drone usage should be clear, written and open to the public, and their usage should be subjected to open audits and proper oversight. Lastly, domestic drones should not be equipped with weapons.

South Africa needs to decide whether it want its skies to be filled with snooping robots. The constitutional right to privacy demands that restrictions be placed on their use, but as it so often the case, the technology is moving faster than the law. This is problematic, as any limitation on a fundamental right must be done through a law of general application.

The most relevant laws at the moment are the Civil Aviation Act, which established the CAA, and the Protection of Personal Information Act, which has mandated the establishment of an information and data protection regulator.

Some may say that that the issue should be left in the hands of the CAA. But will it address these concerns in its regulations?. It may not, as the legal mandate of the Authority confines its role to airspace safety and security: it is not set up to consider privacy issues. It could do (and should do), if it reads the security aspect of its mandate broadly, but it may not.

It is instructive to look at what happened when civil society petitioned the US Federal Aviation Authority to conduct a public rulemaking process on drones and their implications for privacy and other civil liberties. The Authority refused, claiming that doing so did not fall within its mandate.

The Protection of Personal Information Act should prevent the misuse of personal data recorded by drones, but its mandate is confined to informational privacy. This may well leave the physical privacy aspects of drone usage unregulated. This means that at the very least, the City of Cape Town should release a policy for public comment on its intentions; but, preferably, separate national legislation should govern their use.

The history of technology take-up teaches us that technology is not politically neutral: it is shaped by existing social relations. This can lead to the most remarkable innovations serving the interests of a political elite before they serve the interests of the ordinary citizen.

So it is with surveillance technologies too, which politicians have “sold” to the ordinary citizen as being necessary to secure their safety. The evidence of them having done so in meaningful ways is in short supply, globally and locally. However, thanks to the courageous stances of Edward Snowden and others, there is copious evidence of them actually having made people more insecure by giving even more power to increasingly unaccountable rulers.

This history should forewarn us that the possibilities of the bad drones, even the ugly ones, outnumbering the good drones in time to come are very real indeed. Anyone who thinks that this is alarmist is not historically aware.

This article is republished with permission from EE Publishers.

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Drones in South Africa: the good, the bad and the ugly