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Why UAVs are in the regulation “grey” zone

But when unmanned aerial vehicles — which have been rapidly growing in popularity across Canada — are spotted hovering outside condo windows or over backyards, the resulting unease is understandable. But is the peeping drone illegal?

Commercial use of drones falls under Transport Canada regulations and requires a Special Flight Operations Certificate.

But recreational users of UAVs weighing less than 35 kilograms —
considered "model aircraft" in government terms — don't need permission
from the federal department to send their remote-controlled devices up
in the air.

"Right now in Canada we don't have any laws that regulate
recreational drones, especially in terms of privacy," says Ciara
Bracken-Roche, a PhD candidate at Queen's University, Kingston, Ont.,
and member of its Surveillance Studies Centre.

But at the same time, she says, "If you're inside your 10th-floor
condo and a drone flies outside your window and takes pictures into your
private dwelling, your reasonable expectation of privacy is totally
violated."

In Canada, the Charter of Rights and Freedoms says "you have the
right to be secure against unreasonable search and seizure,"
Bracken-Roche says, noting that legal rulings around a "reasonable
expectation of privacy" come up quite a bit.

The key issue, though, is what recourse you have if you're uncomfortable with a drone hovering near your property.

A call could be made to the police, and perhaps they would find grounds to lay charges.

"The use of drones to invade someone's private home, business etc.
could potentially be viewed as criminal harassment or voyeurism," says
Const. Pierre Bourdages, the public information officer for Halifax
Regional Police.

"In some instances there may be grounds to lay charges if the
behaviour was seen to meet the requirements under the Criminal Code for
these charges.

"That said, it would be very dependent on the individual facts of each case."

Alternatively, a formal complaint could be made to the federal Privacy Commissioner's office.

But one problem there: how to know who's flying the drone, since the
operator may well be out of sight, and the tiny machine doesn't have a
licence plate or, usually, other identifying features. It's not the
Goodyear blimp.

"Under the current privacy complaint intake process, Canadians must
be able to identify the organization they want investigated and must
also specify what of their personal information was collected," says
Shayna Gersher, a graduate student at the Institute of Political Economy
at Carleton University in Ottawa.

"Identifying the drone operator or an unmarked drone for that matter,
as well as the type of information that was collected, poses almost
insurmountable challenges to Canadians seeking recourse."

So far this year, the Vancouver Police Department has fielded about a dozen drone complaints.

In the spring, an Ottawa resident complained to his city councillor about a drone buzzing around his neighbourhood.

Such complaints come as the popularity of drones has taken off.

The electronics retailer Future Shop has seen double-digit
growth in drone sales so far in 2014, says communications manager
Elliott Chun.

"People are always looking for what that next great gadget is going
to be, and the drone is certainly one that's among the top 10 of
people's …want or gift lists."

Chun says Future Shop is keeping an eye out for any regulations that might arise around drones.

"With anything we carry, whether it's an appliance or your smartphone
or even a DSLR camera, we expect our customers will use products
purchased at Future Shop responsibly and according to the law, so … if
any type of regulation comes into play, we'll make sure we enforce those
types of things."

For her part, Gersher also sees bigger privacy issues at stake around
the use of drones, pointing to an instance earlier this year when the
Ontario Provincial Police were reported to have deployed a drone over a
group of protesters for surveillance.

"Drones in this context become a political tool of intimidation that
has profound, far-reaching impacts for a free and democratic society
such as ours."

Concerns about drones are arising outside Canada, too.

Last month, a man in upstate New York was arrested and charged with
unlawful surveillance after a drone was spotted flying outside exam room
windows at a hospital in Ulster.

In Washington, D.C., on Friday, model aircraft hobbyists, research
universities and commercial drone interests filed lawsuits challenging a
government directive that they say imposes tough new limits on the use
of model aircraft and broadens the Federal Aviation Administration's ban
on commercial drone flights.

Back in Canada, Dany Thivierge, the founder of Mississauga-based
Canada Drones, draws attention on the company's website to safety, and
urges drone users not to fly above people, houses, cars or pets.

Thivierge also urges those flying drones for commercial purposes to
ensure they follow the regulations as set by Transport Canada, but says
in the hobby area, there are "no real rules except common sense."

When it comes to privacy concerns, he says, it's impossible to warn drone operators against their "own stupidity."

"What I always say with privacy is that today you can buy a
pretty good pair of binoculars or even a camera with a big lens and you
can spy on all your neighbours without them knowing … it's quite easy,
and there's no big fuss about that.

"The drone is quite noisy in the sky. It has lights. Your chances of not being spotted are pretty slim," he says.

"That one per cent or less of people who are going to do stupid things, they need more education, that's for sure."

Both Gersher and Bracken-Roche note that drones can be deployed for beneficial uses.

"The Canadian public at large isn't against UAV technologies," says
Bracken-Roche, referencing data collected by the Queen's surveillance
centre for a report.

"They see the benefits of things like using technologies for
emergency response, search and rescue … even border patrols in remote
areas."

"But then things like UAVs that would fly too high to be seen, people were very uncomfortable about that, or UAVs
that could see into their homes perhaps with a thermal sensor or radar —
individuals were very uncomfortable about that as well."

Gersher notes that drones can offer "many benefits to society."

"However, we must ensure that their uses and the types of equipment
affixed to them fall in line within our protected rights and freedoms,"
she says.

Transport Canada has a UAV group that is working with industry
stakeholders to recommend amendments to existing regulations, the
department said in an email.

But Gersher says that effort, which she says is due for completion in
2017, focuses only on safety, and doesn't account for other types of
uses.

From a safety perspective, that may be fine, she says, but
considering that drones can be used in many contexts, "Canadians and
elected officials should have a fair chance to debate the kinds of uses
they want permitted in their domestic skies."