The Office of the Information and Privacy Commissioner of Ontario has updated its guidance governing the use of remotely piloted aircraft systems, also known as drones, by law enforcement in the province in response to advancements in drone technology.
Per research commissioned by the IPC last year, Ontario police have increasingly used drones. The amended guidance outlines legal requirements and new best practices for police service boards and police to facilitate legitimate and responsible drone deployment in the context of law enforcement.
Since the release of the IPC’s initial drone guidance in 2012, drones have become cheaper and come with enhanced capabilities like high-resolution imaging, thermal sensors, and automated tracking. The commissioner noted that these developments created privacy concerns that must be flagged and mitigated.
The guidance highlights the police’s privacy and transparency obligations under the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act. In addition to privacy-related considerations, it recommends actions for police before, during, and after drone program implementation.
While police can handle personal information for lawful law enforcement purposes under FIPPA and MFIPPA, the common law or another statute must independently authorize this handling where privacy is reasonably expected. The guidance concentrates on drones’ photo taking and video recording capabilities; nonetheless, the IPC noted that drones can also be imbued with sensors collecting, using, storing, or disclosing personal information. These can be enhanced through artificial intelligence or facial recognition technologies.
FIPPA and MFIPPA also mandate that police conduct a privacy impact assessment to determine a program’s possible privacy risks before obtaining personal information. In addition, police must develop an incident response framework for potential privacy breaches and to address devices being lost or compromised; they must inform impacted individuals and the IPC of breaches as soon as possible.
Moreover, drone use must comply with flight zone restrictions as they are considered aircrafts under Transport Canada’s Canadian Aviation Regulation, Part IX – Remotely Piloted Aircraft Systems. RPAS programs are also subject to the Canadian Charter of Rights and Freedoms, which covers freedom of expression, assembly and association; the right to life, liberty and security of the person; the right to be secure from unreasonable search and seizure; and the right to equality.
Police are also bound by Ontario’s Human Rights Code.