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and the need for stronger regulations. It stated: "Canadian industry is currently capable of becoming a world leader in unmanned aircraft system technology and services. The working group is unanimous in the view that the rapid development by Transport Canada of regulations and standards is critical to exploit this technological advantage for domestic and export opportunities." Progress has been slow. A new working group was established in 2010 and its final report is not due until 2017. Aviation regulations are rarely developed quickly, points out Barnsley, who also suggests the cost of running drones would be prohibitive to most businesses. However, the costs are decreasing and a small camera-carrying drone can be operated for under $350 by anyone with a smartphone, highlights "Drones in Canada," a March 2013 report by the Office of the Privacy Commissioner of Canada. The report says: "It is not far-fetched to imagine that drones could be used for aerial mapping services; the television and film industries could use drones to shoot advertisements or movies; or they could be used by real estate agents to sell property." But laws and regulations currently do little to address the privacy implications of these "hovering data-collecting robots," it warns. Commercial UAVs are covered by the Personal Information Protection and Electronic Documents Act and are subject to the same requirements as with any other data-collection practice. But, the report says, "it may prove challenging for individuals to produce sufficient evidence in support of their complaint under the Privacy Act or PIPEDA, particularly when dealing with unmarked or covert surveillance." Privacy lawyer David Fraser, a partner at McInnes Cooper's Halifax office, believes some of the privacy fears are unfounded and just "techno-panic." He says: "When you have a new technology that could disrupt things, there's a tendency among a large group in society to start thinking about worst-case scenarios." After all, s. 8 of the Canadian Charter of Rights provides for a reasonable expectation of privacy, and the same rules that apply to businesses using cameras are going to apply to drones operated by commercial entities. Businesses should still be wary. An energy firm could monitor a pipeline on public land using a drone, and keep an eye out for potential protestors, or industrial saboteurs, just as it is entitled to employ a security guard. But information must not be recorded, and facial recognition software, or anything revealing individuals' characteristics, cannot be used in these circumstances, says Fraser. "The presence of a drone isn't necessarily [a legal issue], but additional components could take it to somewhere that's problematic." Similarly, an unmanned drone operated by Amazon to deliver gifts would be unlikely to violate privacy laws on its own. But problems could arise if it were to collect video footage, or check whether residents were home by pointing cameras at windows. Canadian policing bodies will likely continue to be somewhat ad hoc and primarily constrained by the SFOC process and [law enforcement agencies'] interests in avoiding public pushback of UAV-based practices." Amazon's announcement last year may remain pie in the sky for now, but it may not stay that way for long. In the U.S., where regulations are less developed than in Canada, Congress has passed legislation calling on the Federal Aviation Authority to write rules by 2015 for the use of commercial drones. The FAA estimates 7,500 commercial drones will be in use within five years of a regulatory framework being set. UAV technology is also marching forward, having advanced to the point where some drones can remain airborne "Pipeline surveillance is probably going to be where we see this developing. It's one of those nice little niches that would be really fun to work through." Joe Barnsley, Pitblado LLP More urgently, Fraser believes a debate is needed over the appropriate use of drones by police agencies. "Laws do very little to regulate how police agencies collect and disclose personal information," he says. "The provisions are so broad you could fly through them." He suggests if the G20 were held again in Toronto next year, police would very likely use drones to monitor protesters. He questions whether the rules would preclude the use of weaponized UAVs, asking: "We wouldn't allow a police helicopter in Canada to have missiles but would we allow a drone to have that sort of thing? I would say no, but has that line been drawn?" A November 2013 report, "Watching Below: Dimensions of Surveillance-byUAVs in Canada," drew a similar conclusion regarding the use of police drones. The report, by Block G Privacy and Security Consulting, said: "Until national policies are established or court challenges arise . . . the use of UAVs by for several days and fly at altitudes of up to 25,000 feet, while others are able to imitate plants and animals such as birds. Express delivery company DHL International GmbH has already carried out test drone flights in Germany, and rivals FedEx and United Parcel Service of North America Inc. are also said to be actively exploring the idea of UAVs. Canada's relatively permissive regulatory structure offers a good platform from which to exploit the growing interest in commercial drones, but aviation and privacy laws may seem in need of tightening up and clarifying. All this could well offer lawyers an emerging line of business, especially those who can attract energy sector clients and who have strong credentials in aviation, transport, or privacy law. Like Cripps, Barnsley believes "pipeline surveillance is probably going to be where we see this developing. It's one of those nice little niches that would be really fun to work through." www.CANADIAN L a w ye r m a g . c o m F e b r uary 2014 41

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