THE REGULATORY FRAMEWORK FOR AERIAL IMAGING BY RECREATIONAL USERS OF “DRONES” IN SINGAPORE

• Author: CHEN Siyuan LLB (Hons) (National University of Singapore), LLM (Harvard); Assistant Professor of Law, Singapore Management University.
• Citation: (2017) 29 SAcLJ 126
• Date: 01 December 2017
• Published date: 01 December 2017

Old and Emerging Issues and Some Possible Solutions

In response to the sudden proliferation of hobbyist unmanned aerial vehicles used for digital imaging – or “drones”, as they are popularly, but rather inaccurately, labelled – the Singapore government enacted the Unmanned Aircraft (Public Safety and Security) Act in 2015 and also amended various existing laws relating to air navigation. However, in view of the rapid evolution in drone technology and the ever-expanding range of useful applications brought about by drones, what are some of the challenges that would be faced when enforcing the law against recreational users of aerial imaging in particular, and what are some of the changes that should be made to the law when the matter is revisited for review in the future? Through an appraisal of the current state of drone technology and a comparison with the rules that have been adopted in various other jurisdictions around the world, this article considers how our existing laws on recreational users of drones can be improved, and also highlights emerging issues that would eventually warrant regulatory attention here and elsewhere. The matters to be discussed here include whether limits should be placed on distance, speed, and people proximity, whether drones truly pose a threat to privacy and other related rights, and how drone safety can be enhanced independently of a permits and permissions system.

I. Background and roadmap

1 Unmanned aerial vehicles, or remotely piloted aircraft, are by no measure completely new technologies, but one particular iteration of them – ready-to-fly multi-rotor copters equipped with digital technology for aerial imaging, and also often given the misleading appellation of “drones”– can only be said to have become mainstream and affordable in the last couple of years.1 Because of this development, any member of the public is now able to easily purchase and pilot something that has had a longstanding association with military surveillance and warfare, and recreational and professional users alike have been engaging in aerial imaging on this new platform on an unprecedented scale.2 In the case of the recreational user, regulation is complicated by the fact that because of ease of use and the nature of the hobby, drone imaging is inherently a solo activity that often leaves no traces – a typical user takes no longer than half an hour to set up, fly, take the images, and leave. Should there be any incident that requires investigation, it may be difficult to establish the facts, as even witnesses may not know who was piloting the drone.3 Moreover, unlike commercial operators who have an incentive not to be decertified by the authorities of their exploitative rights and are accountable to their clients, and social flying clubs which are likely to insist on safe flying practices within their ranks, the average drone user operates under no such constraints.4 Drone imaging offers spectacular possibilities, and with the allure of capturing a photograph that would go “viral” on social media, some drone users may be tempted to push the envelope as to what is considered safe and responsible. An overly oppressive regulatory framework may not necessarily result in compliance in the long run, even in Singapore.

2 Countries all over the world have since struggled to find a timely, precise and proportionate response in attempting to regulate the phenomenon of widespread recreational drone usage, mainly because there remains a prevalent – but eminently questionable – assumption that drones are either inherently unstable or likely to fall into the hands of criminals, and the drones can therefore cause great damage to property and people, if not violate privacy and other related rights.5 Widely reported stories of supposed drone “incidents”– be it drones being flown near airports,6 being flown near restricted government infrastructure,7 interfering with emergency responders,8 delivering drugs to criminals,9 crashing into unsuspecting crowds in high-profile events,10 being destroyed by vigilante home-owners,11 being used to mount weapons12 or being targeted for use by terrorist groups13– have not helped with improving public opinion either. Drones simply have a very bad reputation by virtue of the negative press they regularly receive, and the tide does not look like it would turn any time soon.14 The benefits of drone technology, be it for the provision of vital public services,15 the innovative improvement of commerce16 or the radical

transformation of the media and entertainment industries,17 are simply not as newsworthy (and therefore as well known) in comparison.

3 In Singapore, the Government was quite quick to respond legislatively to what it perceived as a growing problem when the recreational use of drones – particularly those equipped with digital imaging capabilities – became visibly popular in around 2014.18 Indeed, the parliamentary debates surrounding the enactment of the Unmanned Aircraft (Public Safety and Security) Act19 in 2015 were also telling in terms of the Government's characterisation of the potential issues. Although the Minister for Transport who had introduced the Bill to the Legislature was quite circumspect in his views in that drone technology required a “balanced and sustainable regulatory framework” so as not to impede innovation and responsible recreational use, the other Members of Parliament who spoke appeared to be much more skeptical.20 The great concern for possible invasions of privacy was almost unanimous, while a couple of Members of Parliament even suggested increasing police powers so that the authorities could not only commandeer drones from “rogue” users, but also be equipped with the weapons to destroy the drones either upon landing or while they were still in the air.21 In the end, while rationality prevailed and the more extreme suggestions raised during the debates were not adopted, the debates also did nothing to alter the original contents of the Bill, and the Air Navigation Act22 (and its subsidiary legislation in the form of the Air Navigation Order)23 and Public Order Act24 were amended accordingly.25

4 This article has two primary aims. First, it seeks to identify some of the critical gaps in the current regulatory framework for recreational drone users – gaps which should have been identified, extensively discussed with the benefit of input from proper experts, and pre-empted even before the new law was passed. The identification of the gaps in the framework is done in the light of how drone technology, particularly with respect to aerial imaging, has evolved greatly and is likely to evolve even more, and also by surveying the wide variety of

approaches taken by other jurisdictions in regulating the use of drones. Secondly, given the Government's promise to continue to closely monitor development in this area of the law,26 this article advocates for a more proportionate and rational response from the Government and other stakeholders should future opportunities to amend the regulatory framework arise, and further highlights some of the emerging issues that would eventually warrant close regulatory attention.

5 To this end, this article is divided into the following main parts: Part I,27 as we have just seen, briefly sets out the context and the aims of this article; Part II28 attempts to navigate the current web of laws and subsidiary legislation in Singapore to provide as complete a picture as possible of the state of regulation for drones (whether used for aerial imaging or otherwise); Part III29 then highlights some of the key problems that have either eluded meaningful legislative responses or are likely to emerge as important issues in the near future, and proposes some possible solutions; and Part IV30 is where the recapitulation and concluding thoughts reside. Where appropriate, the practices and regulations of other jurisdictions will be highlighted and considered along the way.

II. Current regulatory framework in Singapore

6 What exactly, then, is the current regulatory framework for the use of drones in Singapore? It is not that easy to discern immediately, as the regulations are scattered throughout various sources of law rather than consolidated in a single piece of legislation. Previously, there was no direct regulatory framework for the use of modern consumer drones; instead, there was a piece of subsidiary legislation (the aforementioned Air Navigation Order), introduced several decades before, that regulated the use of model aircraft and other similar aerial objects.31 However, because model aircraft are fundamentally different from drones in terms of characteristics and functions, a series of guidelines was issued by the

Civil Aviation Authority of Singapore (“CAAS”) to fill in the gap while the Government deliberated on the appropriate legislative response.32

7 That response materialised in 2015. Following the enactment of the Unmanned Aerial (Public Safety and Security) Act, amendments were made to the Air Navigation Act, Air Navigation Order and Public Order Act. Reading all four pieces of legislation together, unmanned aircraft – which we can safely assume to refer primarily to drones – that are being flown within Singapore, whether for aerial imaging or otherwise, are not permitted to do the following:

(a) Fly at an altitude above 200ft above mean sea level unless a permit from CAAS (from which all drone permits and certifications are obtained) has been obtained; if this is contravened, the punishment upon conviction is a fine not exceeding $10,000 (not exceeding $20,000 for subsequent convictions).33 However, it is unclear if this prohibition still applies if the drone is flown over portions of the sea that go beyond Singapore's territorial waters (but took off from within the territory of Singapore).

(b) Fly within 5km of an airport or airbase unless a permit has been obtained;34 if this is...