All around the world, public life has come to a standstill. The pandemic makes painfully clear that our globalized society faces challenges which do not adhere to national borders but rather require a new dimension of international cooperation and solidarity.
On the other hand, the pandemic also reveals one of the most distinct traits of humankind: The capacity to cope effectively, adapt, and even thrive in times of crises. Within days, the genome of the new virus was sequenced, tests to detect the virus were developed and new hospitals were built. Our deep-rooted ambition to develop new technologies or to find new applications for existing technologies has become an essential weapon in our fight against the virus.
Using drones to contain the virus?
In particular, China showed that drones are more than just the weekend toys of a creepy neighbour. Today drones are used to monitor the citizens' compliance with curfews, to deliver medical supplies or to light critical construction sites. Agricultural drones, originally designed to spread fertiliser, have been repurposed to spray disinfectant across pavements and public squares. Drones equipped with thermal imaging sensors are being used to detect people with fever / flu symptoms.1
Many countries have followed the Chinese example and are deploying drones in their attempts to contain the spread of the virus. Even the Austrian Federal Minister of the Interior confirmed that drones used for road traffic monitoring support the detection of illegal gatherings.2
Is Big Brother approaching?
The use of drones by the police raises numerous legal questions. Most importantly, which rules are in place to prevent an Orwellian Big Brother scenario where citizens are under constant surveillance?
From a data protection point of view, the Austrian police takes the following position: The cameras on the drones are not equipped with a zoom function which makes the identification of specific persons impossible. Consequently, no personal data is processed, and data protection law does not apply.3
This line of argument is flawed for two obvious reasons. Firstly, even without a zoom function, the face of a person may be recognizable in low-altitude flight. Using the camera below a certain altitude could be blocked by a software. Otherwise one would have to trust the police "pilots" not to do so, although they have a very good reason to get a clear shot of any (potential) suspect.
Furthermore, this argument implies that images must depict a clearly visible face to make a person identifiable. It is obvious though that a person on a picture may be identified based on many other factors than the face, such as the overall context of the image (Easter Sunday, St. Peter's Square, Rome), peculiar cloths (a man in a white cassock), or the specific surrounding and circumstance (the man speaking to his congregation from a balcony). The missing zoom, thus, cannot be the critical criterion to rule out the application of data protection laws entirely.
The use of drones operated by the police may also directly interfere with the right to respect for private life as guaranteed by art 8 ECHR. Any limitations to this fundamental right by a public authority must be provided for by law. In a reply to a parliamentary question, the Federal Minister of the Interior expressed the view that using the drones has a legal basis and broadly referred to the provisions of the Austrian Criminal Procedure Code (Strafprozessordnung) and the Security Police Act (Sicherheitspolizeigesetz).4 However, both statutes greatly restrict the permissibility of video surveillance by the police. And neither of the two statutes provides for explicit rules on the use of drones.
Getting back to normality
It may take a couple of months, but the pandemic will certainly pass by. What will be the lessons learned? At least a part of the conclusion must be that states should proactively engage with new technologies, create rules and wherever possible use the technology to improve the lives of their citizens. Drones, in particular, demonstrated to have very practical applications at present and have a good chance to entirely change the functioning of our societies in the near future. But as with virtually all technologies, they present both benefits and risks. Ensuring the sustainable use of such technologies will require extensive efforts by the legislator, government and the civil society.
In times of crisis it is legitimate to restrict the fundamental rights of citizens in order to save the lives of others. A healthy civil society must be able to endure this. And the citizens must trust their governments to restrict their rights only as far as necessary. This trust, however, is not limitless. That is why our fundamental legal principles such as the rule of law or the primacy of human rights become most important when we face unprecedented challenges. Clearly, one thing must not happen: That governments misuse the citizens' trust and make temporary emergency measures that restrict their fundamental rights permanent.