August 25, 2020
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Good deals of occasions have come to light where Countries are taking the help of drone technology to combat the spread of COVID-19. The use of drones is crucial in tackling the further spread of the virus as it ensures no human contact. Successful examples from countries all over the world including countries like India, China, US and Italy exhibit the use of drone technology to carry out important functions. These important functions include using drones to spray disinfectants, to deliver medical supplies and essential goods, to broadcast important messages via drones, and to carry out temperature checks to identify the symptoms of infection and alerting the authorities automatically. However, the most common function of drones is conducting surveillance to ensure that lockdown and social distancing norms are adhered to by the public.
Surveillance through drones: Is privacy taking a back seat?
Surveillance is carried out by using drones equipped with cameras working in conjecture with facial recognition software to identify individuals. This raises a concern regarding an individual’s right to privacy. Despite all the benefits associated with this particular usage, one cannot simply turn a blind eye to the fact that such a usage paves the road towards automated blanket surveillance, denies the citizens an opportunity to give consent and in most cases, operates without any legal framework, consequently violating citizens’ right to privacy. To add fuel to the fire, the US government recently warned that drones made in China may be secretly sharing data with the Chinese government. 
On 18th May 2020, the Apex Court of France, namely the Conseil d’État banned the usage of drones for surveillance purposes for the reason of it being in gross contravention to a citizen’s right to privacy. The court held that through such usage, the State violated Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which recognizes the “right to respect for privacy and family life”. Since the Indian State is also deploying drones for similar surveillance purposes and the “right to privacy” is a fundamental right in India, it becomes imperative to understand whether such usage in India violates the right to privacy or not.
Passing the test of necessity & proportionality: An Indian perspective
In India, proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right are not disproportionate to the actions of the State. The usage of drones for surveillance must pass the test of proportionality and legitimacy laid down in the case of KS Puttaswamy vs Union of India for such usage to be not in violation of the right to privacy. As per the test, there are four conditions that need to be satisfied to consider a State action of interference into privacy as lawful. These conditions are as follows:
(i) The action must be sanctioned by law;
(ii) The proposed action must be necessary for a democratic society for a legitimate aim;
(iii) The extent of such interference must be proportionate to the need for such interference;
(iv) There must be procedural guarantees against abuse of such interference
Coming to the first condition, in light of the COVID-19 pandemic, the Ministry of Civil Aviation gave a conditional exemption to the government entities to carry out aerial photography for the purpose of carrying out surveillance strictly for COVID-19 related purposes. Other than this, as per the Civil Aviation Requirements issued by the Directorate General of Civil Aviation (DGCA) carrying out aerial photography is prohibited, but the same can be allowed if permission is granted by the DGCA. Therefore, the first condition is satisfied. However, the requirement of obtaining permission by the DGCA before using drone technology is flawed in the sense that there is no punishment attached in case of non-compliance. Instances of moving forward with the usage of drones without obtaining due permission have also come to light in Telangana.
Coming to the second condition, the relevant aim of using drone technology for conducting surveillance is to ensure proper implementation of lockdown to prevent the spread of COVID-19 without any human intervention like police patrols. Therefore, the second condition is also satisfied.
With respect to the third condition, the use of drone technology for COVID-19 related purposes in India is legitimate so far. There are no lesser intrusive alternatives to ensure proper implementation of lockdown measures. Usage of drone technology is the most efficient way as it stands out from other measures by giving an option of “zero-contact”, which is very crucial in this pandemic. Therefore, the third condition also stands satisfied.
Coming to the last condition, ever since the usage of drones in India was legalized in 2018, the rules and regulations for the same are not adequate. Neither any procedural guarantees against abuse of drone technology in India exist nor is the State action of using drones monitored by any official body. This leaves the State with unfettered powers. Therefore, the fourth condition is NOT fulfilled.
Some advocates of this technology argue that usage of surveillance drones is worth the shortcomings associated with it if it helps control the spread of the virus. Undoubtedly, surveillance drones have been of great help during this pandemic. However, many are apprehensive of a possibility of the continuance of such surveillance measures even after the end of the COVID-19 pandemic. It is clear from the Conseil d’État judgement that irrespective of their usefulness, drones as surveillance measures cannot come at the cost of citizens’ right to privacy.
In India as well, the use of drone technology for surveillance by the State clearly fails to pass the test as laid down in the Puttaswamy judgement. Considering the widespread use of drone technology in India, a need for procedural guarantees against misuse of such technology is indispensable. A monitoring body should be set up to overlook the State actions in respect of drone surveillance. The monitoring body must be empowered to hold the State accountable:
  1. For the kind of usage, it carries with drone technology and the manner in which it processes the data captured through the drones.
  2. If the State proceeds with the use of drone technology without obtaining due permission.
  3. If the State misuses the drone technology for purposes unrelated to COVID-19.
Without any assurance stating otherwise, one cannot have blind trust in the State that the data captured by it using drones will not be used for any other purpose without an individual’s consent or knowledge.
The Data Protection Authority envisaged under the Personal Data Protection Bill, 2019 would have sufficed to take over the monitoring of the usage of drones by the State. However, the Bill is yet to be passed by the Parliament. Ideally, there should be a strong data protection framework first with an independent Data Protection Authority and only then actions intrusive of the right to privacy should be allowed. In India, the reverse is happening. The usage of drones for surveillance seems to be another one of the many State actions in India which directly violate the right to privacy without having any basic framework for transparent data governance.




Miss Christina D’souza is a third-year law student at Dr Ram Manohar Lohiya National Law University, Lucknow.

In Content Picture Credit: Bold Business

1 Comment

  1. Md says:

    A very informative blog that possess some excellent questions to the world’s democracies. It highlights how citizens could be subject to unjust measures if the country’s judiciary system doesn’t work at the same pace as technology adoption.

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