Drones: The Deficiency of the Honour System - Brandon Gray

This note considers whether Parliament should amend its drone registry and drone licensing scheme to better assist law enforcement in preventing and detecting criminal activity.

Drones have become a hot button topic at the dinner table with respect to issues of privacy, trespass, and state surveillance, but the ability of retail drones to facilitate criminal activity seems to have garnered less attention. Drone technology itself isn’t particularly new. It’s origins date back as far as the 19th century “when the Austrians used pilotless hot-air balloons to bomb Venice.” During WWII, unmanned air vehicles (“UAV’s” – a technical term for drones) were equipped with radio signalling that allowed pilots to manipulate their movement. Further development began in the 1970’s, when drones were adapted to have “glider-like properties” to remain in the air for longer periods of time. In the 1990’s, drones were equipped with transmitters to deliver information to military personnel in real-time. After 9/11, the Central Intelligence Agency (“CIA”) began weaponizing the technology and the program was “massively expanded under President Barack Obama”. One analyst believes that some of the US Airforce’s drone swarms could be officially designated as Weapons of Mass Destruction (“WMD”).

So why all the hype now? While drones date back decades, their commercial accessibility to civilians is relatively new. Although Canadian case law involving drones and criminal activity is scant, occurrences seem more frequent south of the border. In 2019, a Pennsylvania man was indicted for dropping homemade bombs on neighborhood yards with the use of a drone. In 2015, a drone was discovered crossing the US-Mexico border, attempting to import 28 pounds of heroin into the US. Drones have also been used to deliver contraband inside prison facilities. While forensic techniques have been developed to allow law enforcement to identify the individual behind the drone, the process remains cumbersome and expensive. Meanwhile, criminals are discovering new techniques to avoid drone detection and “obscure where the drone has flown”, making it more difficult for law enforcement to determine who was operating the drone. It seems clear that drones possess the capabilities to facilitate various kinds of criminal activity. It also seems likely that drones will become more attractive to criminals as the technology improves. So how does our legal system currently deal with civilian operated drones?

Current regulations

Currently, commercial vendors face very little, if any, regulations with respect to who can purchase a drone. Once a Canadian consumer chooses to purchase a drone, they are required to register and mark the drone so that the drone is identifiable and can be linked to its proper owner. Drone operators are also required to possess a pilot’s certificate to fly the drone and may be required to possess a Special Operations Certificate if the drone can (1) carry a payload above 25kg and/or (2) fly above 122 meters. There are also age requirements and location requirements which limit who can and can’t operate a drone and where a drone can be flown. Violating these regulations usually result in fines, though jail time is possible (“interfering with an aircraft or airport operations is already a serious criminal offense.”) Drones are currently regulated by Transport Canada. Transport Canada is primarily focused on regulating drones within the context of airspace safety. Although the common law and statutory law may adequately address the problems associated with trespass and privacy rights, the current regulatory framework is troublesome at best.

The problem

The main problem with the current registration and licensing scheme is that it operates on an honour system. This means that commercial vendors can sell drones to any interested purchaser and it is up to the purchaser to register their drone and ensure they become licensed to operate it. Criminals who intend to use their drones to aid in criminal operations have no incentive to register their drone or receive a license to operate. Law enforcement does not have an effective means of determining which drones are registered and which are not, unless they are able to confiscate the drone. If drone technology begins to be used more frequently in business operations, such as in Amazon’s package delivery system, it will be nearly impossible for law enforcement to determine which drones are registered and licensed and which are not. This presents obvious issues for law enforcement in determining whether a drone is transporting Amazon packages or contraband. Lastly, it remains uncertain under what grounds law enforcement is legally permitted to seize a drone.

How can we fix it?

The existing drone registry and licensing regime could be amended so that it no longer operates based on an honour system. Parliament could create a statutory scheme that legally requires commercial vendors to ensure purchasers are sufficiently licensed to operate a drone ‘before’ one can be sold to them. Commercial vendors would also be required to record basic information about a purchaser and their drone at the time of sale and send the information to a government database. Parliament could also require drone manufacturers to implant a unique digital dog-tag inside each of their drones before they become commercially available. This information could be linked to a licensee’s profile and would easily enable law enforcement to determine whether a drone has a permit to fly without having to seize it. Obviously, criminals could remove this id-tag, but at least then law enforcement would be able to separate the licensed drones from others. Lastly, Parliament may choose to restrict market access to certain types of drones. Drones which are especially adept at having weaponry or explosives mounted on or affixed to them may be blacklisted from Canadian markets. Although these steps may appear radical and costly, such solutions are not out of step with how Parliament chose to tackle gun control in the 1990’s with the enactment of the Firearms Act. The importance of matching anonymous drones to identifiable individuals may be even be more pressing than matching firearms to their owners given that capturing a criminal drone may not always lead law enforcement to identifying or arresting the person operating the drone.

Are the risks real?

Critics of the above-mentioned drone registry and licensing scheme may argue that this approach is a radical solution to a barely existent problem. As I myself have said, the case law surrounding this issue is meager, at best. I was only able to find one case in Canada where it was alleged that a drug dealer was using his drone to traffic drugs and spy on law enforcement.

However, where crime occurs, case law follows slowly behind. We shouldn’t confuse new threats or insufficient case law as proof that a threat is minor. A lack of case law may suggest that criminals who are using drone technology are successfully evading detection. Even if the threat of criminal drones is mostly an imaginary boogeyman, there is still reason for concern. As this technology improves and becomes more widely accessible (as manufacturers bring down costs) it is not unimaginable that criminals will appropriate this technology in the same way internet technology presently facilitates criminal activity. Developing a legislative scheme now may better protect the public interest in the future when the threat increases.

The success of the Canadian firearms registry scheme is still hotly debated. Part of the problem with this scheme is that so many guns were already in circulation once Parliament decided it should develop a national registry. By replacing an honour-based drone registry scheme with a more stringent, mandatory scheme ‘early’, Parliament may stave off some of the problems seen in implementing the national gun registry program.

What are the societal costs involved?

It must be acknowledged that drone technology also presents widespread opportunities for the general public. Drones possess the capacity to:

Drone technology can also be used in the public sector for noble endeavours such as search-and-rescue missions and for recreational purposes. With such widespread potential benefits, it would be foolish not to consider the societal costs associated with implementing this burdensome drone registry scheme. How will all this red tape affect the productive use of drone technology?

Stringent regulations gateway to drone benefits

I am of the opinion that if the general public is to get on board with the widespread application of drone technology, a stringent regulatory system is not only preferable, it is necessary. Ensuring drones operate safely and within permissible bounds is the best way of ensuring their expansion receives concomitant public support. If drone technology were to be used for committing such acts as terrorism, it might well spell the end of an era for private drone use. Developing a more stringent regulatory scheme may lessen the risks of adopting this technology and garner more public support.

Drone technology has the potential to influence our lives in dramatic ways. The technology may prove to be too ubiquitous for Transport Canada to thoroughly regulate on its own. Parliament should consider taking a more hands-on approach to regulating this technology. It should also turn its mind to how this technology may be used by criminal or terrorist organizations. Placing the onus on purchasers to self-license and register their drones presents criminals with an opportunity to remain anonymous and unaccountable whilst engaging in criminal conduct. Perhaps a more stringent regulatory scheme at the present time is premature. The costs of implementing such a scheme (government expenses and the forgone costs to private and commercial users) may prove to outweigh the benefits against mitigating drone-related criminal activity. But if drones continue to run wild, one wonders which crime drone will sound the death knell to widespread adoption of drone technology.