By Dr Silvia Venier and Dr Migle Laukyte
This emerging issue briefing focuses on drones, which are used increasingly in emergency management as well as in defence and security operations. It explores briefly the evolution of drone technology; their different uses in both emergency and defence situations, with associated security, safety, ethical and legal issues; and the role of law and ethical guidance in ensuring adequate protection against their misuse.
The importance of drones is closely related to developments in Artificial Intelligence (AI), which promise to make many tools —from robotic assistants to cars— autonomous, smart and able to make decisions on their own. A primary purpose of this briefing is to explore what this promise (and subsequent realities) might mean for drone users, manufacturers and society at large.
How Drone Technology is Evolving, and How Drones are being Used
In military terms, and according to the Dictionary of Military and Associated Terms, a drone is an inclusive term that can refer to “a land, sea or air vehicle that is remotely or automatically controlled,” which means that it is either controlled by humans at a distance or by automatic piloting. According to the International Civil Aviation Organisation (ICAO), a Remotely Piloted Aircraft System (RPAS, also called Unmanned Aerial Vehicle, UAV, or drone), is “a set of configurable elements consisting of a remotely-piloted aircraft, its associated remote pilot station(s), the required command and control links and any other system elements as may be required, at any point during flight operation”.
Yet, the human role in drone piloting seems to get increasingly smaller: with growing regularity, we hear about autonomous drones that are completely independent from a human (or non-human) pilot. The work of Airbus to build self-piloting urban air mobility vehicles and more autonomous aircraft for commercial purposes clearly illustrates this trend. The issue here is to distinguish between automatic and autonomous drones. Autonomy and automation are very often used interchangeably as if these terms meant one and the same thing. These two terms are, however, quite distinct: automatic drones are drones that perform their operations without human assistance, although humans can intervene at any moment and still decide when and where the operation starts, ends or is interrupted; whereas autonomous drones are the drones that, in contrast to automatic drones, not only decide upon their goals but also carry on the process to bring these goals into being without any human assistance or interference, as explained in this article of Harvard Journal of Law and Public Policy. For instance, automatic drones are those developed by Airobotics (Israel): they deploy, land, recharge on their own, yet the pilot can intervene at any time. Though autonomous drones in the sense just described do not yet exist, there is a common belief that this is just a matter of time.
Drones can take the form of not only aircraft, but also spacecraft. For instance, the autonomous systems of X-37B spacecraft or Phantom Express spaceplane, built by Boeing for military rather than civil uses, such as “communications, navigation, surveillance, or even anti-satellite and counter-anti-satellite operations” according to an Air and Space Magazine article published in 2016.
There are many and diverse official and unofficial classifications of drones made on the basis of their weight, speed, the distance they can fly, whether the pilot can see the drone or not (the so-called drone flight within Visual Line of Sight (VLOS), that is 500 meters from the pilot; within Extended Visual Line of Sight (EVLOS), that is from 500 meters on but still visible to the pilot(s); and Beyond Visual Line of Sight (BVLOS), that is when the pilot cannot see the drone), and so forth. According to the field of use, one suggested classification of drones is:
- Emergency: Search and rescue; Natural disaster management; Humanitarian aid; ambulance;
- Infrastructure monitoring and inspection;
- Earth science; and
- Defence and security: Traffic surveillance; Drug monitoring; Pipeline patrol, Port security
The fields of application that are most challenging, and raise the most policy and regulation related issues, are (1) emergency and (2) defence and security classes of drones which, therefore, are the focus here.
With respect to the first category of emergency relief operations, drones are an emerging technology in the humanitarian field and are expected to be increasingly used in disaster prevention and response operations. A recently published study on the use of drones in these situations suggests that drones may support humanitarian action in a number of different ways. These include not only mapping (which remains the most evolved form of drone use in humanitarian settings today) but also supporting search and rescue operations or delivering lightweight essential items to remote or hard-to-access locations. Recent examples include drones used for mapping and disaster risk reduction activities in Haiti, for damage assessment in Nepal after the 2015 earthquake and in the Philippines after Typhoon Haiyan, as well as for search and rescue by the Manchester fire and rescue service. It has been suggested too that a very promising use of drones may be to monitor human rights abuses and atrocities in humanitarian contexts. As pointed out by United Nations Office for the Coordination of Humanitarian Affairs, however, more research is needed to identify the comparative advantages (versus the potential risks) of using drones in humanitarian settings.
In relation to the second category, namely the use of drones for defence and security purposes, drones are used primarily here for military purposes during armed conflicts or to assist law enforcement and infrastructure security tasks during peacetime especially. Military drones are used for a variety of purposes, such as intelligence operations, surveillance, search and rescue, precision strikes (MQ-1B Predator), real time direct situation awareness (RQ-11B Raven), finding, tracking and designing targets and battle damage assessment (R/MQ-8 Fire Scout). Drones in law enforcement and infrastructure safety and security are a promising tool to help us fight traffic jams, dangerous driving, drug smuggling and abuse of drugs in certain areas, as well as to ensure the safety and security of oil and gas pipelines, construction sites, wind turbines, power lines and many other networks of key important infrastructures.
The use of military drones as weapons raise many questions from not only general international law and human rights law perspectives, but also ethical ones, such as in relation to the psychological effects that the constant presence of military drones on surveillance or attack operations may have on local populations, or the risk of collateral damage. Similar questions apply to the use of drones for law enforcement and infrastructure safety purposes, such as what weapons they may carry in peacetime scenarios. Such legal and ethical dilemmas continuously challenge their widespread use, including trust in the benefits associated with these technologies.
Any kind of drone can raise concerns relating to the safety of their use and security, which are likely to grow commensurate with the exponential increase in the number of drones flying. For instance, there have been reported cases of UAVs interfering with civil aviation, (intentionally or unintentionally) flying over sensitive zones such as nuclear power plants, or even injuring people when their remote pilot loses control over them. Standards for the safety of drone deployment are currently under discussion at the European level (applicable to drones of more than 150 kg); smaller RPAS’ pilots are generally required to have third party liability insurance.
The next section is devoted to discussing in more detail some of the ethical and human rights implications of drones used in emergency relief operations, in military conflicts, and in police enforcement and infrastructure safety.
Ethical and Human Rights Implications
Trust, Public Perception and De-humanization
Looking at the use of drone technology in peacetime, and more specifically in the context of disaster risk reduction and emergency response operations, humanitarian actors need to take into consideration public perception towards a technology that was developed primarily in the military sector and, therefore, is associated with military use or intelligence gathering. Taking UAVs’ use in emergency settings as an example, it has been noted that the “integration of military metaphors and technologies into emergency response is a delicate enterprise” since this may result in a top down approach which “diminishes the emergency services’ capability to activate community resilience and respond to natural disasters”.
More research is required as to how public perception of drones is evolving in different contexts. In any case, it is important to take into account the reputational risk for humanitarian actors deploying drones, which may contribute to de-humanizing relief operations, i.e. removing human actors from the field and to some extent substituting them with technology. This may lead to a deterioration in the overall quality of humanitarian assistance given, or at least to an increased perception of the provision of diminished relief.
In the case of defence and security drones, public perception is not linear either. According to the Economic and Social Research Council, people have “confused and uneasy” perceptions of military drones, in part explicable by the fact that their use—either in military or in civil settings—is commonly “misrepresented and exaggerated,” in other words, public opinion is confused as we do not fully and completely understand whether the drones bring more benefits or rather cause or could cause more harm. This finding highlights the importance of transparency and accountability, which are key tools for instilling public trust in drone technology.
It goes without saying that the discussion on dehumanization is especially felt in the settings of defence and military drones. Many researchers and experts agree that there is the risk of an armed conflict being treated like a video game and, consequently, turning affected populations into screenplay characters without connection to the realities of armed conflicts, because the way a pilot controls remote aircraft is very similar to the way he would do it playing a video game. Whereas previously the role of human decision-makers was a given in armed conflict situations (the so-called ‘human-in-the-loop’ metaphor), now the AI present in drone technology with accompanying capabilities is increasingly challenging the necessity of such human involvement in decision-making processes. An important resultant challenge, therefore, is to determine where and when human decision-makers should be involved, according to legal and ethical understanding of what is right and what is wrong in specific circumstances. What is clear though is that the use of military drones has to respect international humanitarian and human rights law: the challenge is interpretative, according to the United Nations, namely to adopt the principles of these laws to the evolving reality of drones.
Privacy and Personal Data Protection
The second concern that should be mentioned here is the likely impact of drones on the protection of privacy and of personal data, especially since many mapping projects take place in densely populated places and capture high-resolution images. It has to be pointed out that privacy and data protection are human rights that remain valid in emergency situations, even though only very limited attention on the enjoyment of these rights in humanitarian settings has been devoted by the academic or practitioner communities. In contrast to CCTV or mobile phones, drones may allow for levels of surveillance, and resultant privacy intrusion, that ground-based individuals may not expect, be aware of or have consented to. Due to their unique characteristics, such as versatility and ability to overcome physical obstacles, drones may allow for bulk data gathering and potentially multi-purpose uses (both legitimate and illegitimate) with minimal levels of supervision and accountability, also due to lack of adequate regulation on these aspects.
As technology advances, it is to be expected that other invasive applications may well be embedded in drones, such as biometric facial recognition techniques, audio recording systems, and GPS recording of the location of persons. Because of their characteristics, i.e. non-detectability and ability to reach remote locations or even potentially to follow individuals, it has been suggested that drones embedding these new applications have the potential to engage in more extensive (and, therefore, potentially also intrusive) levels of surveillance. According to the Article 29 Working Party 2015 Opinion on Drones, “there is a real need to focus on the challenges that a large-scale deployment of drone and sensor technology could bring about for individuals’ privacy and civil and political liberties and to assess the measures necessary to ensure the respect for fundamental rights and data protection”. The Special Eurobarometer 427 on ‘Autonomous systems’ (on robots, autonomous cars and civilian drones) found that two-thirds of respondents (66%) were concerned that civil drones pose a threat to privacy (p. 54).
Similar issues on privacy and personal data protection can arise in relation to defence and security drones: the use of drones to ensure port, traffic and infrastructure safety inevitably may cause situations where personal information could come under threat. An example is the case of private citizens living next to critical infrastructure hubs where such drones could capture and record personal data, thus infringing Article 8 of the European Convention on Human Rights 1950, which establishes that we all have a right to our private and family lives and, in particular, to keep our home a private place. Yet the likelihood of this scenario occurring is higher in the instance of law enforcement drones: as was established by the Article 29 Working Party, police can not only monitor individuals and groups of population but can also access data collected by private drone operators for commercial purposes. This is why such use of drones “creates high risks for the rights and freedoms of individuals and directly interferes with the rights to respect for private life and to the protection of personal data protected under Article 8 of the European Convention of Human Rights (ECHR) and Article 7 and 8 of the European Charter of Fundamental Rights (Charter)” (see Opinion on drones mentioned above). This is where the discussion on privacy and data protection has to turn into an examination of issues regarding the necessity and appropriateness of collecting such personal data, together with the use of proportionate means to do so.
In addition, drones used for the law enforcement purposes could have a negative impact on other human rights such as freedom of assembly and freedom of expression: the challenge is to balance legitimate interests and rights of both the state and individuals, such that the safety and security of mass public gatherings may be ensured without prejudicing fundamental human rights.
With this in mind, to be compliant with privacy and data protection regulations, all kinds of drones should be compliant with the principles of privacy by design and privacy by default. They should also respect data minimization requirements and further norms that ensure privacy protection, such as informed consent of citizens (where this is possible) and transparency as concerns its collection, storage and use by private and/or public entities that build and fly drones.
The Need for a Harmonised Set of Norms for the Use of Drones
It may not be entirely clear what the exact role is that legal and policy frameworks should play in relation to the use of emerging technologies, i.e. in terms of what needs to be regulated, how it should be regulated, and to what extent. In general terms, law endeavours to keep pace with technological advances, which is equally true of new technologies that are transforming emergency relief operations. In practice though, legal tools and regulation are often lagging behind technological advances. The lack of, or inadequate, regulations can be a substantial hindrance to deploying new technologies effectively, including drones.
For instance, in many countries, specific regulations governing drones’ uses do not exist. Where they do exist, they typically do not include provisions regulating emergency situations. In terms of ascertaining what regulations do exist, there are some online databases collating national regulations on the use of drones, including in Europe.
Some efforts aimed at harmonising drones’ regulations at the regional level have been carried out recently at the European Union (EU) level. Following the European Parliament’s 2015 Resolution, that called for the harmonisation of drone regulation across EU Member States, the new Regulation 2018/1139 on common rules in the field of civil aviation (that came into force in September 2018) devotes Section VII to “unmanned aircrafts”. Of especial note though is that, pursuant to Article 2(3)(a), the new Regulation does not apply to “aircraft carrying out military, customs, police, search and rescue, firefighting, border control and coastguard or similar activities and services undertaken in the public interest”. These types of drones, which are performing ‘public functions’, therefore remain (un)regulated at the domestic level. That said, Member States may still consider it preferable to apply the EU regulation instead of their national law “for achieving safety, interoperability or efficiency gains” (para. 10 preamble).
Mention should be made here too of the guidelines on addressing ethical and data protection issues, as well as transparency and community engagement, that are critical for the successful use of drones in emergency situations, as developed by, e.g., the humanitarian UAV network. With particular reference to the right to data protection in humanitarian settings, recent interesting developments have included the Signal Code (elaborated by the Harvard Humanitarian Initiative), which articulates the right to information in a broader human-rights-based approach to humanitarian information actions, and the International Committee of the Red Cross (ICRC) Handbook on Data Protection in Humanitarian Action, both released in 2017. While the Signal Code is particularly interested in clarifying rights and duties relevant to ‘humanitarian information activities’ (i.e., emergency response activities involving the collection and processing of data), the ICRC Handbook focuses on the basic principles of data protection and deals with specific issues raised by different humanitarian technologies, such as big data, drones (covered in chapter 7), biometrics, cash transfer services and cloud services.
With respect to drones utilized for defence and military purposes, an ongoing need exists to continue an international debate because we haven’t yet banned the use of killer drones in armed conflicts: the (military) drone industry needs to adapt its products to adequately reflect international humanitarian and human rights law principles, not the other way around. Should this not happen in practice then, as was the case previously with chemical weapons, inadequately developed or regulated drones that do not reflect these internationally agreed standards should be considered to be illegal and their use banned, making them commercially unviable.
There are many and diverse challenges to deal with concerning the harmonization of norms regulating drone use. In addition to the ones highlighted thus far, the need exists also to harmonize the use of drones by public institutions (such as police) versus drones for private commercial use: in particular, in those cases when both—private and public drones—fly over the same urban areas. Furthermore, the distinction between the uses of military drones and civil drones can readily be blurred, since not all military drones are weapons; indeed, many drones may be used for multiple purposes, including for peace operations, commerce or the arts. Debates concerning drones would benefit too from more comprehensive research and guidance regarding drone types. Clearer, more exhaustive classifications would enable more to be known about some drone technological developments and, consequently, would allow for higher levels of transparency, accountability and scrutiny than is currently the case yet which are pivotal to drone acceptance and legitimacy.
Significant growth in both the technological advances of and potential roles for the employment of drones present both important opportunities as well as vulnerabilities, including in the domains of disaster risk reduction and emergency response, and defence and security, as illustrated here. In parallel, there is an increasingly pressing need for a comprehensive review to be conducted, informed by a robust evidence-base, of necessary steps be taken regarding the accompanying ethical and legal implications of such trends. This is to ensure that the risk of any resultant harm is minimised and that any related benefits are maximised. The need for the development of more consistent and comprehensive regulation remains a pressing priority too.
GSDM would be pleased to advise and assist those who are, for instance, engaged in the assessment, development or use of diverse drone technologies – such as for surveillance, humanitarian assistance, disaster management, infrastructure safety or other purposes – as well as in developing or evaluating comparative legislative and regulatory measures.
Dr Silvia Venier and Dr Migle Laukyte are Associates of GSDM. Additionally, Silvia is a postdoctoral fellow at the Scuola Superiore Sant’Anna, Pisa (Italy), with expertise in both international humanitarian law and disaster (risk) management; and Migle is a CONEX-Marie Curie Research Fellow at the Universidad Carlos III de Madrid (Spain), specialising in law and Artificial Intelligence related topics.