Privacy’s Sky-High Battle: The Use of Unmanned Aircraft Systems for Law Enforcement in the European Union

Abstract

Benefiting from the rapid advancements in Unmanned Aircraft Systems (UAS) technology with enhanced tracking and data collection capabilities, law enforcement authorities re-discovered air as a dimension where state power can be exercised in a more affordable, accessible, and compact way. On the other hand, during law enforcement operations, UAS can collect various types of data that can be personal or sensitive, threatening the right to privacy and data protection of the data subjects. Risks include challenges related to data security, bulk data collection, the diminished transparency and fairness resulting from the inconspicuous nature of UAS, as well as ethical concerns intertwined with privacy and data protection. Upon examination of the legal framework including the General Data Protection Regulation the Law Enforcement Directive, various Aviation rules, and the new proposal for the Artificial Intelligence Act, it becomes apparent that the EU legal framework’s adequacy in safeguarding privacy and data protection against law enforcement use of UAS is context-dependent, varying across use cases. The current framework lacks clarity, leading to arbitrary application and limited protection for data subjects. Enforcement of safeguards is insufficient, and the Aviation Regulations, applicable to law enforcement UAS, require member states' opt-in, which has not occurred as of the authors’ knowledge. The Artificial Intelligence Act addresses UAS operations but focuses on market risks rather than obligations imposed on law enforcement authorities. Consequently, the existing framework is rendered inadequate for medium to high-risk law enforcement operations, leaving individuals vulnerable and insufficiently protected against intrusive UAS surveillance. Rectifying this involves addressing the enforcement gap and making the necessary amendments to relevant regulatory aspects. Additionally, the implementation of specific technical measures and steps to foster effective cooperation among stakeholders in UAS deployment for law enforcement is imperative.