© McInnes Cooper, 2015 UAVs and privacy David TS Fraser Acadia UAS 26 November 2015

© McInnes Cooper, 2015 Background –Why I care –A note about “technopanic” Legal landscape –Government / law enforcement –Business –Media –Individuals Over the horizon Outline

© McInnes Cooper, 2015 Background - Why I care About me –Practicing privacy law for more than a dozen years –Strong interest in media, journalism, photography –Strong geekish tendencies –Recent hobbyist UAV owner

© McInnes Cooper, 2015 There is a very strong tendency for people to freak out about new or disruptive technology, particularly if it has any capacity to collect information about individuals –Telephones –Kodak cameras –Camera phones –Drones Often end up with over-regulation that is disproportionate to the risk Even worse with drones because most people don’t have a good handle on what “drones” are or do. They’re just extra-creepy. A note about “technopanic”

© McInnes Cooper, 2015 So are there no issues?

© McInnes Cooper, 2015

Perception v Reality PerceptionReality

© McInnes Cooper, 2015 How you are affected/regulated by privacy laws depends upon who you are and what you are doing Generally technologically neutral No specific privacy rules – yet – for UAV operators –Government –Business –Media –Individuals Legal landscape

© McInnes Cooper, 2015 Old maxim from the 13 th century: “cujus est solum, ejus est usque ad coelum et ad ed inferos” the owner of a piece of land owns everything above and below it to an indefinite extent Cases before aviation You can’t build a bridge over your neighbour’s property “Ownership” of airspace

© McInnes Cooper, 2015 Simplification: –Passage of aircraft over property in a way that does not interfere with owner’s use of property is ok. –Passage of aircraft over property at the level where the owner uses or can use the property may be trespass. –Passage of aircraft over property above where owner uses the property but in a manner that interferes with use of the property may be nuisance. Trespass or nuisance?

© McInnes Cooper, 2015 All privacy laws in Canada regulate the collection, use and disclosure of “personal information” If it ain’t personal information, privacy laws don’t apply. What is “personal information”: –Any information about an identifiable individual. –If the person can’t be identified, privacy laws generally don’t apply. For privacy statutes, whether something is “public” doesn’t matter. Corporations have no privacy rights. All privacy laws

© McInnes Cooper, 2015 All public sector entities in Canada are subject to federal or provincial privacy laws Not consent-based Generally limit collection to what’s necessary for legitimate operations From the Privacy Act (Canada): 4. No personal information shall be collected by a government institution unless it relates directly to an operating program or activity of the institution. Pretty broad latitude Government / Law Enforcement

© McInnes Cooper, 2015 But also the Charter: Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure. All depends on whether there is a “reasonable expectation of privacy” in the totality of the circumstances. In R. v. Tessling, [2004] 3 SCR 432, 2004 SCC 67, the Supreme Court of Canada said that overflight using FLIR looking for grow ops does not violate s. 8 of the Charter. Government / Law enforcement

© McInnes Cooper, 2015 All businesses in Canada are subject to privacy laws that regulate the collection, use and disclosure of personal information in the course of business. It is consent based, but consent needs to be commensurate to the sensitivity of the personal information. Regulators likely take the position that information about my house or property is information about me. Business

© McInnes Cooper, 2015 News media and creative industries are generally not subject to privacy statutes The statutes often carve them out Subject to common law or statutory “invasion of privacy” or common law “intrusion upon seclusion” –Was there a reasonable expectation of privacy? –Was it intruded upon in a manner that would be highly offensive to a reasonable person? Media

© McInnes Cooper, 2015 Very similar to media Not subject to federal or provincial general privacy laws Subject to common law or statutory “invasion of privacy” or common law “intrusion upon seclusion” –Was there a reasonable expectation of privacy? –Was it intruded upon in a manner that would be highly offensive to a reasonable person? Individuals

© McInnes Cooper, 2015 The regulation of UAVs is evolving and some suggest that privacy needs to be embedded in UAV regulations Privacy Commissioner advocated for this. New idea of “privacy sensitive” sites Over the horizon

© McInnes Cooper, 2015 From the Privacy Commissioner

© McInnes Cooper, 2015 I disagree. –Nothing to show the current system is broken. –Our current privacy laws adequately deal with the evolving status quo. Over the horizon

© McInnes Cooper, 2015 Questions? Get Legal Alerts & Updates: mcinnescooper.com/subscribe/ SUBSCRIBE

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© McInnes Cooper, 2015