Submissions to House of Lords Committee on the EU Consultation on the Use of Drones:
Sep 2014

1. Our Mission: Promoting human rights and holding governments to account, drawing upon
the lessons learned from the conflict in Northern Ireland.

2. Our Expertise and Achievements: Since 1990, Rights Watch (UK) (formerly British
Irish Rights Watch) has held the UK Government and non-state actors to account for human
rights abuses in conflict settings. We work with victims and communities to expose human
rights abuses, to obtain redress and to hold those responsible for such abuses to account.
Our interventions have reflected our range of expertise, from the right to a fair trial to the
scope of the government’s investigative obligation under Article 2 of the Convention in Human Rights. We have a long record of working closely with NonGovernmental Organisations (NGOs) and government authorities to share that expertise. And we have received wide recognition, as the first winner of the Parliamentary Assembly of first winner of the Parliamentary Assembly of the Council of Europe’s Human Rights Prize 2009 alongside other honours.

3. Our interest is in the regulation of the use of Remotely Piloted Aircraft Systems (RPAS) for
surveillance. The use of RPAS for surveillance concerns communities in the United Kingdom
(UK) who feel that they have traditionally been subject to unwarranted scrutiny. We will
therefore limit our submissions to the questions directed specifically around issues of
surveillance in order to aid the committee with its deliberations.

4. We thank the Committee for the opportunity to provide written submissions on this
important issue.

In Response to your Question 1

5. We are pleased that the considerations of citizen’s fundimental rights are included in the European Commission’s Communication for opening the aviation market to the use of ARPAS
(the Communication). We agree with the Commission that the growth of RPAS use is likely
to endanger a wide range of individual’s rights around privacy. The rights at stake are those
of privacy of person, home, family life and information as guaranteed by Articles 7 and 8 of
the Charter of Fundamental Rights of the European Union and Article 8 of the European
Convention on Human Rights. In all these areas RPAS would provide different challenges,
some of which will prove to be unique to RPAS, some of which are sufficiently regulated
under existing regulations. For example there is little legislation about how individual’s rights
to privacy should be protected if aerial surveillance devices are used around homes by
private or public bodies.

6. Although in section 3.4 the Commission focuses on data protection issues, it does not
address how Member States should regulate the use of RPAS for surveillance, or how the
use of RPAS by European Union institutions itself will be regulated. We consider it vital to
the protection of fundamental rights and the promotion of public confidence in RPAS usage
that greater attention must be paid to these issues. Further, to the Commission should
make clear how such uses might be regulated in a consistent manner, especially if it
concerns usages that may span the jurisdiction of multiple Member States, such as for
border protection.

In response to your Question 6

7. The current data protection regulations will prove to be insufficient to govern the use of
RPAS by both private and public bodies for surveillance of individuals. The current data
protection regime is reliant upon an individual being able to identify which organisation has
collected data about them so they can contact that organisation if they seek to challenge or
utilise the data that has been stored. As such, private and public bodies have a duty to warn
individuals that they may be subject to CCTV, or that their data may be stored or used for
particular purposes. Due to the nature of RPAS this is more difficult as it is likely to be hard
for a normal individual to identify which organisation is flying an RPAS, for what purpose,
and whether that RPAS is being used for a purpose that will collect data about that
individual. Therefore an individual is unlikely to be able to access their data protection
rights unless a great deal of clarity is added to what actions an RPAS user would need to take
to constitute sufficient notice to possible subjects of their data collection.

8. If the use of RPAS becomes more prolific and the sight of RPAS more normal, it will also be
increasingly difficult for ordinary individuals to determine whether a particular usage of
RPAS is collecting information legitimately or illegitimately. For example it must be possible
for an individual to challenge usage which they believe has led to data being collected which
an organisation is not permitted to collect, for example sensitive personal data. Therefore
any regulatory regime must also provide a sufficient disincentive for individuals that fail to
abide by the notification requirement or for those who would collect data that they are not
entitled to collect or process.

9. Finally we must ensure that any uses of RPAS by public bodies for surveillance is closely
regulated. This is especially the case if the surveillance is carried out covertly. RPAS provide
a flexible platform from which a range of surveillance can be carried out. It would allow a
public body to carry out surveillances that the Regulation of Investigatory Powers Act 2000
defines as both ‘directed’ and ‘intrusive’. RPAS challenge this regulatory framework as they
provide the capability for operators on the ground to more easily switch between
surveillance that is ‘directed’ and ‘intrusive’, and they severely test the distinction between
the two. ‘Directed’ surveillance is differentiated from ‘intrusive’ surveillance by the type of
target, with the surveillance inside homes or vehicles being considewred to be ‘intrusive’ and
so require greater authorisation. However if surveillance carried out exterior to a home or
vehicle provides the same information as a device inside a home or vehicle it is also
considered to be ‘intrusive’. RPAS have the capability to provide that level of information
with a reduced risk of discovery by the intended target. Therefore they should be carefully
regulated to ensure that all uses are correctly defined and authorised. This would then
afford the individual a degree of protection in relation to the fundamental rights set out
above at our paragraph 4.

Respectfully submitted
18th September 2014