Enforcing the COVID-19 lockdown with drones – an examination of the legal, security and privacy issues of governments using drones to enforce the COVID-19 lockdown.
Written by Chris Christodoulou, Director, Christodoulou & Mavrikis Inc for LexisNexis South Africa.
[Durban, 30 March 2020]
President Cyril Ramaphosa’s nationwide coronavirus lockdown from 26 March until midnight on the 16th April 2020 has placed one of the spotlights on enforcement of the lockdown.
Some countries seeking to enforce a coronavirus lockdown have considered the use of drones manned with loudspeakers and cameras to assist law enforcement officials impose the lockdown. The Financial Times recently reported that a police department in California plans to use two large drones for these purposes. In Nice, France, police drones ordered people along the seafront to remain indoors.
It’s obvious that authorities will need to utilize all their resources to enforce the draconian lockdown measures in built up areas as well as to reach remote areas and to inform the public of the measures taken to implement them, and drones are one such resource at their disposal.
The use of drones raises legal, security and privacy issues, and a brief examination of South Africa’s drone laws and regulations indicate that the use of drones by police may require the need for the South African Civil Aviation Association (SACAA), which is the regulatory body charged with enforcing the rules to consider whether it is necessary to relax and exempt law enforcement bodies from the strict adherence to the laws on the use of drones.
The laws regulating the operation of remotely piloted aircraft (RPA) and unmanned aircraft in South Africa are contained in Part 101 of the Civil Aviation Regulations of 2011, supplemented by any Directive issued by the Director of Civil Aviation Authority, Aeronautical Information Circulars and Technical Guidance Materials, read together with Civil Aviation Technical Standard 101.
For private operations, RPAS may only be used where there is no commercial outcome, interest or gain and only in instances where the pilot observes all statutory requirements relating to liability, privacy and any other laws enforceable by any authorities.
In addition, owners and operators of PRA’s must be registered and licensed, and operators must be the holders of an RPAS operator’s certificate (ROC) issued by the SACAA. In the case of commercial operations, a domestic air service license from the Air Service Licensing Council must also be obtained.
The operation of a PRA ‘beyond visual line of sight’ (BVLOS) which is the type of operation partly envisaged by the subject matter of this article may only be conducted by the holder of a ROC as approved in the RPA’s approved operations manual and in visual meteorological conditions below 400 feet of surface level, unless otherwise approved.
The operation of an RPA at night may only be conducted by the holder of a ROC if approved for night operations and may in controlled airspace in visual meteorological conditions in an aerodrome traffic zone and controlled airspace below 121 m.
The Regulations do however make a distinction between completely autonomous drones and remotely piloted drones in that Part 101 does not apply to autonomous unmanned aircraft and their operations or other types of aircraft that cannot be managed on a real-time basis during flight.
In the event that enforcement authorities do make use of autonomous drones it is doubtful whether they would need an exemption from the regulations in Part 101. If, however, remotely piloted aircraft are used when operating at night, from restricted areas and at higher flying levels and beyond visual sight, then it can be argued that the enforcement authorities would require an exemption from the rules from the Director of the SACAA.
As an aside, personal data privacy considerations worth noting with specific reference to drone operations include the Promotion of Access to Information Act, the Electronic Communications and Transactions Act and the Regulation of Interception of Communications and Provision of Communications Related Information Act. In addition, the Constitution of South Africa and the common law principles provide for the right to privacy and impose certain restrictions on the processing and disclosure of personal information.
An important issue which arises is therefore whether the monitoring of persons infected with and carriers of the COVID-19 virus, and the gathering of information of their whereabouts and that of persons with whom they come in to contact with in order to trace and locate those people by drones would contravene the laws on privacy
Finally, the regulations do not currently cater for transport operations by drones. However, to operate commercially, the definition of an air service in the domestic Air Services Licensing Act as “any service operated by means of an aircraft for reward” could arguably bring cargo and mail and goods transport operations into the ambit of the Civil Aviation Act.