Het Gebruik Van Drones. Een Verkennend Onderzoek Naar Onbemande Luchtvaartuigen (The Use of Drones: An Exploratory Study on Unmanned Aerial Vehicles (UAVs))

Abstract

Dutch Abstract: Onbemande luchtvaartuigen, vaak kortweg aangeduid als drones, zijn eenvoudig en goedkoop verkrijgbaar en alom wordt verwacht dat het gebruik van drones door burgers, bedrijven en overheden de komende jaren enorm zal toenemen. Dit roept vragen op over wat er zoal technisch mogelijk is, wat juridisch toegestaan is en wat maatschappelijk wenselijk is. De centrale vraagstelling in dit onderzoek is: wat zijn de verwachte kansen en bedreigingen van het gebruik van drones, in hoeverre bieden de huidige wettelijke kaders ruimte voor deze kansen alsmede voor maatregelen tegen deze bedreigingen en, voor zover die ruimte er niet is, wat zijn de contouren van de wet- en regelgeving die daarvoor wel ruimte zou bieden?

English Abstract: Unmanned aerial vehicles (UAVs), often referred to as drones, have become easy and inexpensive to buy, and it is generally expected that the use of drones by private individuals, businesses and public authorities will increase tremendously in the coming years. This raises questions as to what is technologically feasible, legally permissible, and socially desirable. The main research question is: what are the anticipated possibilities and threats associated with the use of drones, to what extent does the current legal framework offer room for these possibilities and measures to counter these threats, and to the extent that this room does not exist, what are the contours of legislation that would provide this room? This is an exploratory study into the opportunities and threats of drone use and into legal framework for drone use, and not a study into the desirability of different applications for the use of drones. This study not only describes the current possibilities of and threats posed by the use of drones, but also describes future developments. In most cases the horizon is fairly short (1 to 5 years), but sometimes the longer term is examined (10 to 15 years). The focus of this study is on the use of drones by the state for civil (non-military) purposes and the use of drones in the private sector. Military applications fall outside of the scope of this study.

The possibilities for the use of drones can be found in virtually all sectors of society. In the public sector they can potentially be used in the prevention of crime, in making reconstructions of crime scenes, in countering disasters, for dike inspections, countering fraud, guarding borders, and for environmental and agricultural inspections. In the private sector there is potential for camera applications, to make aerial photographs, neighbourhood crime prevention, and for population census estimations. Drones also have wide possibilities in the field of cinematography, television and entertainment. Additionally, there are numerous potential applications for drones equipped with a payload, such as drones with heat sensors to detect cannabis plantations, drones that carry water, food or medicine for rescue operations, and drones with pesticides for use in agriculture.

The potential for drones is offset by the threats that make drones the target of damage, the means of inflicting damage, or an environmental factor that can be responsible for damaging effects. Regarding drones as target of damage includes the deliberate damaging or theft of drones or of their payloads, including collected data. As a means of inflicting damage, this includes a wide variety of (intentional) threats, for instance security threats by using drones to collide with people or objects, to drop certain (hazardous) payloads, and privacy risks in terms of spying on people or annoyingly monitoring them. As an environmental factor, this includes (especially non-intentional) safety and privacy risks. Non-intentional safety risks include various threats regarding air traffic (crashing, colliding, etc.). Privacy risks can consist of being harassed by drones (nuisance and annoyance), but also the largescale (legal or illegal) collection of personal data, inadequate transparency for citizens as to what data are collected and what the data are used for, as well as ‘function creep’ (using data for other purposes than they were originally collected for).

The international comparison with Belgium, France, Germany, the United Kingdom, Australia and the United States shows that Dutch aviation law is very similar to most of these countries. Most of the examined countries apply exceptions to the aviation law rules for drones weighing up to 25 kg. It is notable that a number of countries apply even less demands to the use of the lightest (micro) drones of 7 kg and less. It is also remarkable how the maximum altitude of 300 metres for the recreational use of drones in the Netherlands deviates from the maximum altitude that other countries apply. For reasons of air traffic safety, all countries apply regulations that aim to prevent too liberal use of drones. At the same time, many countries including the Netherlands are studying whether the regulations are sufficient to cope with future developments, and are debating which types of drones use should be permitted. The Netherlands is not a frontrunner here, but with regard to the social debate on the use of drones and on possible amendments to rules and regulations, it certainly does not trail behind other countries either. It is not possible to set out in detail the contours for future legislation, as this depends on future technological developments and the social and political desirability of permitting or prohibiting particular applications of drones. A broad inventory of the desirability of and the social support for specific applications of drones falls outside the scope of this study.

Future aviation law, privacy law and criminal investigation law could be supplemented with the creation of a policy vision, more cooperation between government entities, the pursuit of international regulations, making rules independent of technology (to some extent), the use of privacy impact assessments, privacy by design, and the incorporation of mandatory evaluations. Given the number of drones already in use now and the further possibilities for their use, one option to consider would be to create a lighter legal framework (in aviation law) for drones weighing up to 5 or 7 kg. It should be noted however that weight is not the only factor to determine safety risks. Particularly for the non-professional user – a rapidly growing group – information campaigns could be very valuable with a view to compliance with regulations. Information material could for example be disseminated via the sales outlets for drones. A further mitigation of the risks and threats of the use of drones could be achieved by defining additional (technical) specifications and (mandatory or not) certification and training. The number of drones in the air is expected to increase rapidly in the coming years. This will put enormous pressure on a system of permits and exemptions. Having large numbers of drones will also put the enforcement of such rules under pressure. Expanding the possibilities for drone use while maintaining safety would meet the demands of particular groups of users, and would help to regulate the technological developments. Concretely, we may draw analogies with the introduction of automobiles over a century ago. Since then, a whole infrastructure has been developed for cars consisting of road markings, traffic signs, signposting, parking places, license plates, asphalt and highways. With large numbers of drones in the air we can likewise imagine air routes, with take-off and landing sites and specific approach lanes, and the demarcation of drone flight zones. Insurances and license markings (with a view to liability) and colour coding (for transparency and recognisability) would also need to be considered eventually.

Note: Downloadable document is in Dutch.

Keywords: drones, uav, uas, rpas