The rise of the drones: Do the draft DGCA guidelines balance caution and freedom?

Multiple challenges still remain that must be addressed for a well-regulated but economically viable space to be created for domestic drone use
The rise of the drones: Do the draft DGCA guidelines balance caution and freedom?
The rise of the drones: Do the draft DGCA guidelines balance caution and freedom?
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By Mohd Owais Farooqui

Having issued its draft-guidelines on civil unmanned aircraft (drone), the Directorate General of Civil Aviation (DGCA) is contemplating strict regulation of the use of drones in the country.

The guidelines make it mandatory that all Unmanned Aircraft System (‘UAS’) users must be required to have a Unique Identification Number (UIN). It further states that permission must be obtained from local authorities for all flights below 200 feet over ground level, and from the DGCA for using the drone at or above 200 feet above ground level.

Given that prior approach seemed designed more to suppress than encourage drone use, the issuance of these guidelines is indeed a welcome step from the DGCA. But multiple challenges still remain that must be addressed for a well-regulated but economically viable space to be created for domestic drone use.  

DGCA Guidelines and the ‘multiple’ Challenges ahead

The guidelines conceive an unmanned aircraft as “an aircraft which is intended to operate with no pilot on board”. This requires certain components such as a remotely piloted aircraft (RPA), a command and control unit, and personnel for its operation, all of which form the unmanned aircraft system (UAS). A UAS may function either autonomously or be remotely piloted. However, the DGCA guidelines are focused almost entirely on remotely piloted drones, and hence require that they be operated within the visual line of sight (VLOS). This is a narrowness of focus the DGCA must address, to encourage the autonomy of the drones and bring more clarity into the regulations for autonomous drone-flights.

The privacy paradox

Although autonomous drones promise new possibilities, drones are an intrusive technology with great privacy implications for individuals. However, the DGCA draft-guidelines clearly miss the issue, only stating that ‘privacy must be given due importance’ and do not lay out any procedure for how privacy rights of citizens can be identified and protected.

Solutions to this problem could take the form of amendment to the Information Technology Act, 2000 in case of data threats or the insertion of provisions regarding drone surveillance in the Privacy Bill, 2011 which is still tabled in the Parliament. But both these methods are cumbersome. Hence, the best way is for the DGCA to come up with privacy regulations for drone surveillance while sticking to the basic principle of ‘reasonableness’. i.e., ‘reasonableness’ of drone surveillance must be tested and the expectation of the citizen’s privacy must be reasonable too. The dichotomy between these two aspects requires careful consideration and clear addressing.

Frequency bandwidths versus satellite linkage

The DGCA also mentions that UAS require data-link for their proper functioning. This data-link could take the form of radio or satellite communication. As far as radio frequencies are concerned, bandwidth is already a scarce resource and with the potential proliferation of drones, this problem is likely to be exacerbated.

The International Telecommunications Union (ITU) is already considering specific regulatory provisions for drone frequencies. The DGCA must follow this lead and come up with a clear regulation on the mode of data-linking to be adopted because satellite communication lends greater accuracy of signals to line of sight communication, but radio frequency communication is certainly cheaper. But for the latter, the DGCA must have comprehensive agreements with the Telecom Regulatory Authority of India (TRAI) if radio frequencies are likely to be shared for drones.

DGCA must also harmonise its regulations of International Civil Aviation Organisation (ICAO). Being an international regulatory authority, the ICAO’s mandatory guidelines on drones would also clarify situations of cross-border usage of drones, and Article 12 of the Chicago convention gives Jurisdiction over the ‘High Seas’ to the ICAO.

Though, the DGCA has prohibited the usage of drones across international borders, this is in a context of a lack of binding regulations by the ICAO. But with clarification of the international regulatory space, the effect on international trade could be great, and thus the DGCA must tackle this aspect as well in the coming future.

Definition and procedure

While the guidelines list some civil applications of drones like “damage assessment of property and life in areas affected by natural calamities, surveys; critical infrastructure monitoring including power facilities, ports, and pipelines; commercial photography, aerial mapping, etc", they do not clearly define the limits of the civil function of unmanned aircraft system and how this can be distinguished from ‘other’ purposes of drones. For instance, how should drone use by police authorities be classified under the DGCA guidelines? The ICAO excludes police services from civil applications. Hence, clarity is definitely required as to what shall be the civil uses of drones according to the DGCA guidelines.

There is no doubt that safety is a paramount concern in the use of drones for civil applications. However, the currently proposed 90-day time period for obtaining a drone permit is far too cumbersome. The application process must be made simpler and time-saving.

Once a clear regulatory space is established, drone manufacture and use is sure to grow. Hence, the exigent task for the DGCA is to create a sustainable space for this technology with massive potential.

Mohd Owais Farooqui is a Guest Teacher at the Faculty of Law, Jamia Millia Islamia, New Delhi and a PhD Scholar at the Center of Air & Space Law, NALSAR University, Hyderabad.

Note: The views expressed here are the personal opinions of the author

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