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Civilian Use of Drones as a Test Case for the Right to Privacy: An Israeli Perspective

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The Future of Drone Use

Part of the book series: Information Technology and Law Series ((ITLS,volume 27))

Abstract

Civilian use of drones (i.e., non-military use) is a fast developing phenomenon. Individuals, corporations, and state agencies have long recognized the associated economic and social benefits, including promotion of freedom of expression. Yet, the combination of advanced technologies, unique drone platforms, and cheap prices of the aircraft will inevitably lead to acute infringements of the fundamental right to privacy. The essence of the dilemma is how to draw the right balance between freedom of expression and the dynamic right to privacy, preserve the significant benefits arising from civilian drones and minimize their negative social impact. Therefore, even if assuming that the use of drones should be regulated, the question remains by which means (regulatory, economic, voluntary, social, or maybe the combination thereof) and whether the legislature should differentiate between the restrictions it imposes on governmental agencies, commercial companies, and private individuals—all of whom are potential users of drones. The dilemma is shared by different legal systems around the world including, inter alia, the United States and the European Union. Israel, the world’s largest producer of drones, does not offer a comprehensive solution to deal with the influx of drones in civil airspace. This chapter reviews the different solutions offered in the United States and the European Union and describes the pertinent legal framework in Israel, because Israel is a unique mixed legal system, and therefore offers the opportunity to examine the implementation of the various solutions offered in other countries to the challenges associated with the introduction of drones to civilian airspace.

Researcher in technology and privacy laws; graduated with an LL. M. (cum laude) from Fordham University, New York, and an MBA in Business Administration from the Israel College of Management - Academic Studies. Member of the New-York Bar Association and the Israeli Bar Association.

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Notes

  1. 1.

    A drone, also known as a UAV or unmanned aircraft system is defined as: “A powered, aerial vehicle that does not carry a human operator uses aerodynamic forces to provide vehicle lift, can fly autonomously or be piloted remotely, can be expendable or recoverable, and can carry a lethal or nonlethal payload”. Dept. of Defense, Dictionary of Military and Associated Terms 494 (2001, amended April 2010).

  2. 2.

    According to a study ordered by the Association for Unmanned Vehicle System International, more than 70,000 new jobs will be created in the first three years following the integration of drones into the United States national airspace. Staff Witness, UAV industry will create 70,000 jobs over next 3 years, Space Daily 2013; Staff 2013. See also European Commission 2012. In these times of economic downturn, Europe needs more than ever to identify and support, in the context of the Europe 2020 Strategy, opportunities to boost industrial competitiveness, promote entrepreneurship and create new businesses in order to generate growth and jobs. The emerging technology of Remotely Piloted Aircraft Systems (RPAS) applied to the development of civil aerial applications (commercial, corporate or governmental non-military) can contribute to these objectives”. See also Teal Group 2013, predicting that the worldwide UAV Market will total USD 89 Billion in its 2013 UAV Market Profile and Forecast.

  3. 3.

    Anissimov 2009; Daily Mail Reporter 2012; Bart 2012; Bill 2013; Sara 2012

  4. 4.

    The discussion with regards to the right of privacy in Israel is based on the discussion in Birnhack 2011, p. 43.

  5. 5.

    Basic Law: Human Dignity and Liberty, 5752–1992, SH No. 1391 (Isr.).

  6. 6.

    Protection of Privacy Law, 5741–1981, SH No. 1011 p. 128 (Isr.).

  7. 7.

    A state of emergency has existed in the State of Israel since its establishment in 1948, by virtue of the Law and Administration Ordinance which in essence preserved the validity of the laws passed during the period of the British mandate (the governing entity prior to the transformation of Israel into an independent state). The state of emergency has enabled the implementation of special arrangements capable of undermining basic democratic freedoms, in particular the basic rights to freedom of expression, association and property. Since 1996, the government’s authority to declare a state of emergency has been entrenched in Basic Law: The Government (which is part of a series of basic laws that have achieved constitutional status). It should be emphasized that while the government has been vested with extensive powers in an emergency situation, governmental actions are still subject to review by the Supreme Court of Israel.

  8. 8.

    Birnhack 2007, p. 14

  9. 9.

    Sprenger 1999.

  10. 10.

    Schmidt 2009.

  11. 11.

    Prosser 1960, p. 383.

  12. 12.

    HCJ 6650/04 Jane Doe v. National Rabbinical Court 61(1) PD 581 [2006] (Isr.).

  13. 13.

    It should be noted that the European Commission intends to replace these doctrines with two new doctrines that have not yet been approved, the General Data Protection Regulation (GDPR)—which is designed to extend the scope of the EU data protection law to all foreign companies processing data of EU residents. See the Proposal for the Regulation of the European Parliament and the Council on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation) (European Commission, 25.01.2012) http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf; and the Proposal for a Directive of the European Parliament and of the Council on the Protection of Individuals with regard to the Processing of Persona Data by Competent Authorities for the Purpose of Prevention, Investigation, Detection or Prosecution of Criminal Offences or the Execution of Criminal Penalties, and the Free Movement of Such Data (European Commission 2011) http://www.statewatch.org/news/2011/dec/ep-dp-leas-draft-directive.pdf. Accessed 11 April 2016.

  14. 14.

    Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 1, 1998, 213 U.N.T.S. 222.

  15. 15.

    Commission Decision (2011)

  16. 16.

    Omer 2011, p. 15.

  17. 17.

    For a description of the various types of UAVs and their capabilities, see Stanley and Crump 2011, p. 2.

  18. 18.

    Joshua 2013.

  19. 19.

    For a comprehensive description of existing and future UAV technologies, see Stanley and Crump 2011, note 14, p. 2.

  20. 20.

    Roy 2011, p. 1.

  21. 21.

    The Civil Aviation Authority Law, 5765–2005, S.H. 1980 (Isr.) (hereinafter: “The Civil Aviation Authority Law”).

  22. 22.

    Section 4(a)(2)(a) of The Civil Aviation Authority Law.

  23. 23.

    The Civil Aviation Authority Law, 5765–2005, S.H. 1980 (Isr.) (hereinafter: “The Civil Aviation Authority Law”).

  24. 24.

    The Aviation Law, 5771–2011, S.H. 2296 (Isr.) (hereinafter: “the Aviation Law”).

  25. 25.

    The State of Israel—The Ministry of Transport and Road Safety: Civil Aviation Authority 2015.

  26. 26.

    International Civil Aviation Organization Website. http://www.icao.int/Pages/default.aspx. Accessed 1 April 2016.

  27. 27.

    Margot 2013, p. 57.

  28. 28.

    See, for example, Sarah 2013; see also the comprehensive review in Roger 2014, p. 263.

  29. 29.

    No similar restriction exists in relation to drones operated by private persons.

  30. 30.

    These areas are known as “Class B Airspace”. See Fact Sheet—Unmanned Aircraft Systems (UAS), Federal Aviation Administration 2014. This is the reason why Amazon decided to proceed with its attempt at drone deliveries in India rather than in the United States. See Krithika 2014.

  31. 31.

    Rancho 2013.

  32. 32.

    The Approach to Licensing Operators of Unmanned Aerial Vehicles, Civil Aviation Authority 2011.

  33. 33.

    Biltz 2013, 21; Jason 2012

  34. 34.

    Criminal Procedure (Arrest and Search) Ordinance, New Version 5729—1969 (Isr.).

  35. 35.

    HCJ 465/75 Dagani v. Minister of Police 30(1) PD 337, 349-353 (1975) (Isr.).

  36. 36.

    The emphasis on the question whether the subject of the photograph gave his consent is derived from the basic condition set out in Section 1 of the Privacy Law whereby “No person shall infringe the privacy of another without his consent”.

  37. 37.

    Cr. Leave to Appeal 10141/09 Ben Haim v. State of Israel (published in Nevo, 6.3.2012) (Isr.).

  38. 38.

    See, for example, the Californian court ruling in California v. Ciraolo, 476 U.S. 207. See also Birnhak 2007, p. 11.

  39. 39.

    In a “police state”, the police are able to monitor all the activities of the citizens. As a result the fundamental rights of the citizens are violated, including their right to move from one place to another (without being monitored) and their right to freedom of speech. Consequently it is feared that permitting law enforcement agencies to make sweeping use of UAVs will bring to pass the imaginary world of governmental surveillance described by Orwell 1961.

  40. 40.

    CA 5121/98 Issacharov v. Military Prosecutor 61(1) PD 461 (2006) (Isr.). This judgment is consistent with the wording of Section 3 of the Privacy Law which defines “consent” as “express or implied consent”.

  41. 41.

    Elkana, p. 4.

  42. 42.

    Civil Wrongs Ordinance [New Version] 5728, 266 (Isr.).

  43. 43.

    For a discussion of the ramifications of the use of UAVs on torts law in the United States, see John 2013, p. 500.

  44. 44.

    CA 2126/05 Jaries v. the State of Israel (published in Nevo, 26.06.2006) (Isr.).

  45. 45.

    CA 199509/02 Zadik v. Haaret’z News Publishing (published in Nevo, 22.01.2004) (Isr.).

  46. 46.

    CA 1697/11 A. Gotman architecture Ltd. v. Vardi (published in Nevo, 23.01.2013) (Isr.).

  47. 47.

    CA 1476/05 Aldman v. Rating Ltd.(publihsed in Nevo, 09.10.2007) (Isr.).

  48. 48.

    Section 2(4) of the Privacy Law; see also RPAS Steering Group 2013, p. 20.

  49. 49.

    Judgment by the European Court of Human Rights (Fourth Section), case of Peck v. United Kingdom, Application no. 44647/98 of 28 January 2003.

  50. 50.

    The Israeli system of law uniquely recognizes the right to autonomy as an independent head of damage, derived from the right to dignity. In other countries, this right is recognized but compensated within the framework of other damage. See, for example, the judgment in CA 2781/93 Ali Da’aka v. Carmel Hospital, Haifa 53(4) PD 526 [1999] (Isr.).

  51. 51.

    CA 403/73 Betzlael v. Simantov 29(1) 41[1974] (Isr.).

  52. 52.

    Regulation 93(4)b(1) of the Aviation (Operation of Aircraft and Aviation Rules) Regulations, 5782—1981 (Isr.).

  53. 53.

    Air Commerce Act of 1926, Pub. L. No. 69-254, 44 Stat. 568; Civil Aeronautics Act of 1938, ch. 601, 52 Stat. 973 (codified as amended in scattered section of 49 U.S.C. § 401).

  54. 54.

    Texas Privacy Act, ch. 1390, 2013 Tex. Gen. Laws 1390.

  55. 55.

    Freedom from Unwarranted Surveillance Act, 2013 Fla. Laws 33.

  56. 56.

    CA 782/70 Redomilski v. Friedman, PD 25(2) 523 [1971] (Isr.).

  57. 57.

    LCA 4311/00 The State of Israel v. S8(1) PD 827 (2003).

  58. 58.

    Commission Decision 2011. Section 12 states: “The state of Israel should therefore be regarded as providing an adequate level of protection for personal data as referred to in Directive 95/46/EC with regard to automated international transfers of personal data from the European Union to the State of Israel”.

  59. 59.

    See, for example, Claire 2014.

  60. 60.

    Tova 2001.

  61. 61.

    Section 8(c) of the Privacy Law.

  62. 62.

    Id., Section 11.

  63. 63.

    Id., Section 16.

  64. 64.

    Protection of Privacy (Conditions for Possessing and Protecting Data and Procedures for Transferring Data between Public Bodies) Regulations, 5746—1986, Regs. 4931 (Isr.).

  65. 65.

    Birnhack 2011, p. 235.

  66. 66.

    The Seventh Eye 2015.

  67. 67.

    Michael 2014; Robert 2014.

  68. 68.

    CC (Tel Aviv) 22744-09-11 Sanin v. State of Israel (published in Nevo, 4.06.2012) (Isr.).

  69. 69.

    Tamar & Hiroko 2012.

  70. 70.

    The American Congress has debated a series of legislative proposals designed to ensure that the right to privacy will be safeguarded in the age of UAVs, see Richard 2013.

  71. 71.

    Federal Aviation Administration 2015.

  72. 72.

    The Israeli Law, Information and Technology Authority permitted Google to operate the Google Street View Service in Israel, 2011; Ann 2012.

  73. 73.

    International Association of Chiefs of Police 2012.

  74. 74.

    Finn et al. 2014, p. 363.

  75. 75.

    Id. 358–359.

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  1. Striks Law School, College of Management, The College of Management Academic Studies (COMAS), 7 Yitzhak Rabin Blvd., Rishon LeZion, 7502501, Israel

    Uri Volovelsky

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  1. Faculty of Law, eLaw, Leiden University, Leiden, The Netherlands

    Bart Custers

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Volovelsky, U. (2016). Civilian Use of Drones as a Test Case for the Right to Privacy: An Israeli Perspective. In: Custers, B. (eds) The Future of Drone Use. Information Technology and Law Series, vol 27. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-132-6_14

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  • DOI: https://doi.org/10.1007/978-94-6265-132-6_14

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