HC 772 Defence CommitteeWritten evidence from Dr David Goldberg

Question: Nomenclature—defining the terms RPAS, UAS and “drone”

[1] Which term to apply to the subject under consultation involves the Defence Committee in somewhat of a circular argument—as the inquiry is couched in terms of one specific category, namely, “Remotely Piloted Air [sic] Systems”. The Committee seems unique in its choice of that phraseology! The choice of terminology, of course, is separate from the question of how to define that, or any other, word(s).

[2] National civil aviation regulators are engaged on this quest for terminological exactitude. The UK’s Civil Aviation Authority is widely regarded globally as the standard –setter, notably in connection with its regularly updated publication, Unmanned Aircraft System Operations in UK Airspace—Guidance.1 The section on “Abbreviations and Glossary” states that:

“the terminology related to UAS [sic] operations continues to evolve and therefore . . . [t]he terms listed . . . are a combination of the emerging International Civil Aviation Organisation definitions, other ‘common use’ terms which are considered to be acceptable alternatives, and a number of ‘legacy’ terms.”

For anyone seeking definitions of the several terms (RPAS, UAS, or drone) arguably that is probably the best source. In addition, another authoritative source is the “Abbreviations and Glossary” Section of Circular 328, published in 2011 by the UN body, the International Civil Aviation Authority.2

[3] Activity is also going on at the European level. D-G Enterprise and Industry published its “Road Map” (and three Annexes) during June 2013,3 as the Final Report of the European Remotely-Piloted Aircraft Systems [sic] Steering Group.4 The main term deployed throughout is RPAS, “Remotely Piloted Aircraft System”.

[4] The term “drone” is largely used in popular parlance and news stories . This reflects journalistic need for brevity and adoption of a term widely used among military personnel. Decades ago, the term originally indicated a pilotless, radio-controlled military target towing aircraft.

In 1931, the British developed the Fairey “Queen” radio-controlled target from the Fairey IIIF floatplane and in 1935 produced another radio-controlled target, the “DH.82B Queen Bee”, derived from the de Havilland Tiger Moth biplane trainer. Through some convoluted path, the name of “Queen Bee” is said to have led to the use of the term “drone” for remote-controlled aircraft.5

[5] The term “drone” is now virtually synonymous with, and linked to, the usage of these vehicles by several armed forces to perform actions which continue to receive widespread opprobrium and/or criticism.6 On 29 October 2013, Mr Ben Emmerson QC., as Special Rapporteur on the promotion and protection of human rights while countering terrorism, will present his Report to the General Assembly,7 concerning his inquiry into the “civilian impact, and human rights implications of the use drones [sic] and other forms of targeted killing for the purpose of counter-terrorism and counter-insurgency.”

[6] Even the All Parliamentary Group on the subject is entitled “All-Party Parliamentary Group on Drones” [emphasis added] with the purpose “To examine the use of drones [sic] by governments for domestic and international, military and civilian purposes.”8 In the author’s opinion, the scope of the Group’s focus (as evidenced by entries on its website) has been unbalanced—in a quite noteworthy manner, only interested on the more sensationalist, negative (in their opinion) use of “drones”.9 An approach with greater perspective is to be undertaken by the Parliamentary Office of Science and Technology, which has announced work into unmanned aerial vehicles.

This POSTnote will provide an overview of the range of current and future applications of commercial drones, covering both small drones and larger aircraft. It would look at the potential benefits to the UK and would consider issues that need to be addressed such as how to avoid collisions, privacy concerns and insurance.10

[7] More technically precise terminology—such as “unmanned aerial vehicle” (UAV) or remotely piloted aircraft (RPA)—is preferred by aviation professionals, government regulators and manufacturers (the last trying—understandably—to steer clear of a term which is perceived to be associated (rightly or wrongly) with civil-liberty infringing surveillance or military attack systems. However, such terms, do not refer to the related and required control and communication elements and merely to the flight object. As has been rightly said:

“It’s about the datalink, stupid. The craft is essentially a conduit, an eye in the sky. Cut off from its back end, from its satellite links and its data processors, its intelligence analysts and its controller, non-autonomous drones are as useless as an eyeball disconnected from the brain.”11

In any event, it is essential to make clear distinctions between (i) the aerial component and (ii) the control and communication system components that are necessary for operation. As the President and CEO of the Association for Unmanned Vehicle Systems International has said, “…there is nothing unmanned about an unmanned system.”12

[8] Finally, there are a several “subcategory” definitions that should be borne in mind: “first person view” (FPV) for aircraft are flown via an on-board camera that is live-streamed to an operator on the ground;

[9] The present author would urge the Committee to adopt the terminology of the “remotely piloted aircraft” and “remotely piloted aircraft systems” as generic descriptors. The acronym RPAS foregrounds two crucial aspects of this type of vehicle: (a) these vehicles are not literally “unmanned” as there is a human operator (aka a “pilot”) operating and (hopefully) controlling them and (b)—from a regulatory and legal perspective the vehicle is an “aircraft”.

[10] RPAS may be defined as:

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.13

NB: This might include a “first person view” (FPV) RPA, for aircraft are flown via an on-board camera that is live-streamed to an operator on the ground;

[11] Crucially, this definition characterises the vehicles as “aircraft”, which as the ICAO Circular states implies they:

should be able to operate in airspace, mixed with variety of manned aircraft (eg from gliders to large airliners) under instrument (IFR) or visual (VFR) flight rules adhering to the requirements of the specific airspace in which they are operating.

Question: Ethical and legal issues arising from the use of RPAS

[12] The author would counsel the Committee against becoming embroiled in matters of so-called “ethics” (and is this a “harder” sounding word and/or concept than “morality”? or just a preference for Greeks over Romans?!) Reasonable people reasonably disagree about what should or should not be done in given circumstances. The European Court of Human Rights has often stated that there is no consensus European morality and that Member States are free to figure out their own rules within the so-called “margin of appreciation”. This principle, and that of subsidiarity, should also apply within the state amongst citizens.

[13] As regards legal issues pertaining to RPAS operations, is the Committee distinguishing between a) military users b) state-non-military users and c)civilian users? Further, it is not clear if by “legal” issues, the Committee refers to regulations and/or law/legal topics arising out of the deployment of RPASs?

[14] It should be emphasised that the key rationale for regulation from the perspective of aviation regulators—whether national, regional or international—is the safe integration of RPASs into the national air space.

Period

[15] In the UK, at least as far as non-commercial, civilian (non-commercial) use is permitted the applicable regulations are contained in the Air Navigation Order (2009) (ANO) made under the Civil Aviation Act (2006).14 The two main relevant Articles of the ANO are contained in “PART 22—Aircraft in Flight”, are 166 and 167. Article 167 is about “small unmanned aircraft”; Article 167 is about “Small unmanned surveillance aircraft” (as defined). Both Articles refer to the “person in charge” of the RPAS and Article 167 refers to a “person under the control” of the “person in charge”.

[16] This Response now highlights the main legal (aka law) topics pertaining to the deployment of drones:

[16.1]“Airworthiness” ie, “permit to fly”:

RPASs require a certificate of airworthiness. A European Aviation Safety Agency air-worthiness certificate is required if the vehicle is more than 150 kg and which is neither experimental nor used for State purposes (military, customs, police, search and rescue, fire-fighting, coastguard or similar activities or services). Otherwise, the vehicle is subject to national regulation.

[16.2]Pilot certification to fly:

Currently, in the UK, the situation is rather confused. The Civil Aviation Authority states:

Evidence of pilot competency is required when making an application for permission to operate a UA but currently there are no pilot licences for the operation of UA...The CAA has accepted the Basic National UAS Certificate (BNUCTM) and Basic National UAS Certificate—Small Unmanned Aircraft (BNUC-STM), as evidence of Remote Pilot competency. These certificates are type-specific qualifications which take into account the specific operating capabilities of the UA.15

[16.3]Radio spectrum:

given that no dedicated spectrum has so far been assigned to RPAS, civilian RPAS flying today for research or commercial purposes rely on ad-hoc frequency assignments. Radio spectrum availability is therefore an important element for the growth of RPAS services.16

The matter of regulating the allocated frequency spectrum for the control/command communications (“non-payload”) as well as payload communications (eg, cameras/sensors etc.) is crucial for RPAS operations going forward. Spectrum is allocated at World Radio Conferences under the auspices of the International Telecommunications Union. The matter will be discussed and concrete solutions are to be agreed at WRC 201517:

to consider the use of frequency bands allocated to the fixed-satellite service not subject to Appendices 30, 30A and 30B for the control and non-payload communications of unmanned aircraft systems (UAS) in non-segregated airspaces, in accordance with Resolution 153 (WRC12).

An important safety and security issue concerns the immunity of such wireless systems from being “hacked into” and the purpose, direction etc., of the flight being altered, perhaps for malign reasons.

[16.4]Liability:

This issue concerns who legally is to be liable and for what in the context of an RPAS deployment going wrong—as it will.18 Essentially, the rules for this kind of aircraft vehicle need to embrace a system in which, at least, the (i) owner of the aircraft; (ii) the RPAS operator; and (iii) the pilot-in-command are differentiated but also all included. Practically, this entails that liability for damages caused by the fall of UAV on the ground should be attributed to the operator, ie to the person or entity that...sets up the system, assures its functioning and publishes his/its position.19 One safety-critical issue which raises the matter of liability acutely is that of “over flight of people”:

As operations are very likely to involve flying Unmanned Aerial Vehicles (UAVs) in congested areas and above assemblies of persons, it is apparent that the safety of the public may be compromised unless steps are taken through government intervention to regulate the activity.20

The CAA Guidance (CAA 722, Section Three Chapter 2) states that:

For UA of 20 kg and below, ANO 2009 Articles 166 and 167 define the separation distances that must be applied. For UA operations over 20 kg, the over flight of persons may be allowed subject to the degree of airworthiness certification and appropriate operational procedures such as Ballistic Recovery Systems (BRS) (eg parachutes).

[16.5]Insurance:

EC Regulation 785/2004 came into force on 30 April 2005 requiring most operators of aircraft, irrespective of the purposes for which they fly, to hold adequate levels of insurance in order to meet their liabilities in the event of an accident. This EC Regulation specifies amongst other things the minimum levels of third party accident and war risk insurance for aircraft operating into, over or within the EU (including UAS) depending on their Maximum Take-Off Mass (MTOM) Details of the insurance requirements can be found on the CAA website under “Mandatory Insurance Requirements”. UK legislation which details insurance requirements is set out in Civil Aviation (Insurance) Regulations 2005.21 It is also true that insurance companies are still trying to work out to assess the risks associated with RPAS deployment in order to market commercially viable products. Part of the problem is the lack of long-term, reliable accident data on which to base actuarial assumptions.

[16.6]Privacy and data protection:

The European Commission Staff Working Paper contains a section on privacy and data protection (2.4.3).22 Its main points are that (a) all actions related to RPASs must respect the right to respect for privacy as set out in Article 8 (ECHR); (b) the draft EU General Data Protection Regulation will apply to data processing by private or commercial RPAS operators, thus, there is no need for a new or modified legal privacy or data protection regime (emphasis added); (c) nationally, public video surveillance using RPASs might be restricted by local laws and might need harmonising; (d) the draft Police and Criminal Justice Data Protection Directive will set the minimum standards for state data processing; (e) “Privacy and Data Protection by Design” should be applied to payload development and automated deletion of data could become a principle for civil RPAS operations.23 The matter is also referred to in the European RPAS Group’s Road Map and Annexes (see supra, Question 1, para 3, fn 3).

Finally, the Committee might be interested to note that the European Commission has called for bids for a “Study on privacy and data protection issues related to the use of civil RPAS.”24

The Committee would do well, in the present author’s opinion, to heed the limitations of exigencies arising from the promotion of the notion of privacy pointed out in the tender document:

In Europe, there is a comprehensive legal framework ensuring citizens’ privacy and data protection rights. This framework applies to RPAS operations. The Charter for Fundamental Rights of the EU recognizes everyone’s right to respect for private and family life, home and communications (Article 7) and to protection of personal data (Article 8). Protection of personal data is a right that is closely linked but separate from the right to privacy. Article 16 of the Treaty on the Functioning of the European Union enshrines the right to the protection of personal data. These fundamental rights are implemented through specific EU and national regulations. It is important to ensure that this legal framework adequately covers the new threats resulting from RPAS operations.

Further, the tender document states:

The European Court of Human Rights considers that monitoring (without recording) of individuals in a public place does not interfere with private life, making public space monitoring lawful.25 (emphasis added). The analysis of the RPAS related threats should, in consequence, focus on the two following issues: the surveillance/monitoring activities in non-public areas and the processing of recorded data. Directive 95/46/EC together with the related national laws (later, the proposed General Data Protection Regulation of 25 January 2012) regulate the collection and processing of personal data. Other national regulations, like those on video surveillance, contribute to address broader privacy issues. The application of this general framework should ensure an adequate protection of European citizens against the misuse of RPAS. It might however require some unwarranted governmental intrusion through the use of the unmanned aerial vehicles commonly called drones, and for other purposes.

The key points to bear in mind are:

(i)the plethora of already existing (and the forthcoming GDPR) instruments and court judgements aimed at protecting privacy; and

(ii)that an action may well infringe someone’s privacy but yet be justifiable on other grounds, promoting and protecting other rights!

September 2013

1 <http://www.caa.co.uk/docs/33/CAP722.pdf> accessed 11 Sept 2013

2 <http://www.icao.int/Meetings/UAS/Documents/Circular%20328_en.pdf> accessed 11 Sept 2013

3 <http://ec.europa.eu/enterprise/sectors/aerospace/uas/> accessed 11 Sept 2013

4 Set up by the Commission in 2012 it comprises “group of stakeholders gathering the main organisations and experts interested in the integration of RPAS into the European aviation system: EASA, EUROCONTROL, EUROCAE, SESAR JU, JARUS, ECAC, EDA, ESA, ASD, UVSI, EREA and ECA.”

5 Greg Goebel, “Unmanned Aerial Vehicles”, <http://www.vectorsite.net/twdrn.html> accessed 11 Sept 2013

6 See eg, “The US Drone Program is Fatally Flawed”, <http://intelligencesquaredus.org/debates/upcoming-debates/item/905-the-us-drone-program-is-fatally-flawed&tab=4> accessed 11 Sept 2013

7 <http://www.un.org/en/ga/third/67/dialogues.shtml> accessed 11 Sept 2013

8 See < http://www.publications.parliament.uk/pa/cm/cmallparty/register/drones.htm> accessed 11 Sept 2013

9 See <http://appgondrones.wordpress.com/> accessed 11 Sept 2013

10 <http://www.parliament.uk/mps-lords-and-offices/offices/bicameral/post/work-programme/planned-work/

11 <http://motherboardtv.tumblr.com/post/59807933754/its-about-the-datalink-stupid> accessed 11 Sept 2013

12 <http://www.auvsi.org/AUVSI/AUVSINews/AssociationNews/> accessed 11 Sept 2013

13 <http://itlaw.wikia.com/wiki/Remotely_piloted_aircraft_system> accessed 11 Sept 2013

14 UK Statutory Instrument (SI) 3015/2009 <http://www.legislation.gov.uk/uksi/2009/3015/contents/made> accessed 12 Sept 2013

15 CAA Doc. 722, Section 3, Par 7.1

16 CAP 722, Unmanned Aircraft System Operations in the UK airspace—Guidance, chapter 3

17 Agenda for WRC-15 RESOLUTION 807 (WRC12) Agenda for the 2015 World Radiocommunication Conference <http://www.cept.org/ecc/groups/ecc/cpg/client/introduction/agenda-for-wrc-15>

18 “These Expensive Drones Are Actually The Most Accident-Prone Aircraft In The US Air Force” <http://www.businessinsider.com/bloomberg-study-shows-drones-most-accident-prone-in-air-force-2012-6> accessed 12 Sept 2013

19 “A Regulatory Framework to Introduce Unmanned Aircraft Systems into Civilian Airspace” ESPI Report 31, European Space Policy Institute 2011 <http://www.espi.or.at/images/stories/dokumente/studies/ESPI_Report_31.pdf> accessed 11 Sept 2013

20 <http://www.caa.co.uk/docs/1727/20080515Article98ImpactAssessment.pdf> accessed 11 Sept 2013

21 <http://www.legislation.gov.uk/uksi/2005/1089/contents/made> accessed 30 Nov 2012; see also <http://www.caa.co.uk/default.aspx?pageid=4510> accessed 30 Nov 2012

22 See supra fn 4

23 ???

24 <http://ec.europa.eu/enterprise/newsroom/cf/itemdetail.cfm?item_id=6878&lang=en&title=Study-on-privacy-and-data-protection-issues-related-to-the-use-of-civil-RPAS> accessed 11 Sept 2013

25 13 See §59 of the Judgment by the European Court of Human Rights (Fourth Section), case of Peck v. United Kingdom, Application no. 44647/98 of 28 January 2003

Prepared 24th March 2014