Stakeholders affected by these new regulations have come to perceive it as a double-edged sword that cuts red tape for drone manufacturing in India but doesn’t include any safeguards for collected data.
Although India’s new draft for the Drone Rules 2021, which will supersede the Unmanned Aerial Systems (UAS) Rules abolishes various norms in a bid to promote the drone industry, many legal experts pointed out that the proposed rules do not address privacy concerns like the outgoing UAS Rules, 2o21 did.
Why this matters: It is necessary to not just summarise the policy but also gauge whether it addresses some key issues. For instance, the Draft Rules, 2021 does not even mention the word ‘privacy’. This is concerning, especially since in the UAS Rules 2021, there was a specific obligation on authorised unmanned aircraft system operators to ensure the privacy of a person. Coupled with the fact that the proposed rules allow State governments and the Union government access to drone data at all times, it is necessary to question how the data is going to be used, experts pointed out.
A few weeks ago drones were suspected to have been used in an attack on an Indian Air Force base in Jammu Airport making it the first instance of a UAV attack on the country’s territory. After that, the Prime Minister along with officials from several key ministries such as the Ministry of Civil Aviation went into a huddle to discuss security measures as well as undertake a review of existing drone regulations. In the meeting, officials of MoCA presented a proposal for new drone regulations, and as reported before by MediaNama, this present draft has been released after incorporating the suggestions made by the Prime Minister.
MediaNama reached out to members of the drone industry, as well as lawyers, with three main queries —
- How are the upcoming drone rules different from the UAS Rules?
- What do the draft rules mean for the drone industry?
- Do the rules address privacy concerns?
This is how they responded…
“Proposed rules come with plenty of promises”
“Once notified, the Drones Rules, 2021 will replace the existing Unmanned Aircraft System Rules which were issued earlier this year. Because of the complexity and compliance cost involved, the existing rules were sharply criticised for being at the heavy-handed end of what was desirable for a thriving new industry,” said Rishi Anand, a partner at DSK Legal.
Anand termed the UAS Rules, as a ‘blizzard of regulatory practices’ which includes a multi-level licensing regime and numerous form filings that worried industry. “The proposed rules come with plenty of promises (such as the abolition of several authorisations, cost reductions, etc.) and responds to industry concerns in a simple and sensible manner,” he added.
Kritika Seth, Founding Partner at Victoriam Legalis said that, as opposed to the UAS Rules, which was applicable to drones weighing up to 300 kilograms, the new draft rules, are applicable to drones with a maximum all-up-weight of 500 kilograms, beyond which the Aircraft Rules, 1937 would be applicable.
“While the above changes along with a few other such changes show significant steps proposed to be taken by the government towards liberalisation of drone related rules and regulations in India, on the other hand, to address safety and security concerns, the new draft rules also prescribe that the Central Government shall notify safety features to be installed on drones by its owner. “No Permission No Takeoff” hardware and firmware; Real Time Tracking Beacon” and “Geo Fencing Capability” are likely to be few of such safety features to be introduced in future,” Seth said.
Drone industry happy with the new draft rules
The Drone Federation of India (DFI) appreciated the proposed rules, calling it a ‘balanced approach with an understanding of economic benefits that drone technology brings. The DFI opined that the rules will play a huge role in the growth of the Indian Drone Industry, while also addressing safety and security concerns.
A big question on the issue of privacy
The Draft Rules do not address the privacy concerns of persons during the operation of drones. In fact, under the UAS Rules 2021, there was a specific obligation on authorised unmanned aircraft system operators to ensure the privacy of a person and its property during the operation of drones, including in relation to imagery or data capturing. To this extent, protective provisions need to be built into the Draft Rules to ensure that the privacy of a person and its property are adequately safeguarded during drone operations — Namita Vishwanath, partner at IndusLaw.
Echoing a similar reading of the policy, Vasanth Rajasekaran, partner at Phoenix Legal said, “Notably, other jurisdictions like the EU have dealt with this issue by requiring impact assessment in line with the General Data Protection Regulation before operation.”
“The legislative framework for data protection and privacy is at a nascent stage in India with the proposed bill on this subject still being deliberated by the Joint Parliamentary Committee. It is likely that this aspect will develop in the future and aspects of privacy will be addressed by incorporating appropriate references to data protection and privacy laws,” Rajasekaran said.
Kritika Seth, founding partner at Victoriam Legalis said, “While the rules mention that no person shall operate a drone in any manner, either directly or indirectly to endanger the safety and security of any person or property, no direct reference to privacy-related concerns can be seen as yet. It is also pertinent to note that all State Governments, Union Territory Administrations, and law enforcement agencies shall be provided access to data available on the digital sky platform. Here, it will be interesting to deliberate and determine the scope and ambit of this data that will be available and also what would happen to such data or how would this data be protected in case any privacy-related issues are likely to come to the fore in future.”
Update, July 17, 4.43 pm: Namita Vishwanath, partner at IndusLaw was incorrectly designated as partner at DSK Legal.