Complaints in regard to Transport Canada’s requirement for owners of unmanned aircraft to display their personal information on the device

Complaint under the Privacy Act

May 15, 2018

1. We received four complaints against Transport Canada (TC) regarding a new requirement that owners of unmanned aircraft display their names, address and telephone numbers on the device. More precisely, the complainants alleged that a provision of TC’s Interim Order Respecting the Use of Model Aircraft (Interim Order) is in contravention of the disclosure provisions of the Privacy Act, namely, section 8 of that order titled “Contact Information,” which states the following:

   “The owner of a model aircraft shall not operate or permit a person to operate the aircraft unless the name, address and telephone number of the owner is clearly made visible on the aircraft.”

2. The complainants submit that by implementing the Interim Order, TC has made it mandatory for the owner of a model aircraft to publically display private and personal information on the model aircraft whenever it is being operated. They therefore argue that TC is in contravention of the disclosure provisions of the Privacy Act because individuals subject to the order are obligated to expose and release personal and private information to the general public and other institutions without their consent.
3. The complainants also pointed out that all other federally and provincially regulated forms of transport in Canada utilize registration numbers to identify vehicles, rather than requiring users to display personal contact information. They argued that displaying personal contact information on the model aircraft could expose the operator to potential harassment or identity theft if it were to go missing.

Summary of the Investigation

4. For the purposes of this report, we will utilize the term unmanned aircraft (UA) when speaking generally about aircraft that are designed to fly without a human on board, except where these devices are referred to as unmanned aerial vehicles (UAV), model aircraft, or unmanned aircraft system (UAS) within TC’s representations, the Canadian Aviation Regulations (CARs), or to proposed regulatory amendments.^{Footnote 1}
5. In its response to this complaint, TC explained that under the current regulations, recreational users of UAVs are permitted to operate under the model aircraft provision 602.45 of the CARs, and must adhere to the prescribed regulations under that provision. Commercial and academic UAV users conversely, are subject to additional requirements and must obtain a Special Flight Operations Certificate (SFOC) from TC.
6. In its representations to our Office, TC advised that recent UA incident reports have supported the notion that recreational users are introducing risks to aviation safety aa well as to people and property on the ground. TC submits that most recreational users are new and inexperienced; they are not bound by the same restrictions as their commercial counterparts who are required to submit an application and obtain an SFOC in order to operate a UAV. TC advised that the number of incidents involving UA’s has increased 200% since 2014. As a result, TC has been working towards new regulations to address the safety requirements, growing popularity and economic importance of UAs.^{Footnote 2}
7. As an interim measure to address the safety concerns with the expanding use of UAs, TC explained its Minister issued the Interim Order pursuant to 6.41(1) of the Aeronautics Act, which states that:

   6.41 (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Part;

   1. to deal with a significant risk, direct or indirect, to aviation safety or the safety of the public.

8. TC advised our Office that the purpose of the Interim Order was to mitigate the risks posed by the recreational use of UAs, and responds directly to concerns raised by the aviation industry regarding the dangerous actions of inexperienced users of UAs, as well as the growing threat to safety in the air and on the ground.
9. TC confirmed that the Interim Order specifies, amongst other regulations, that recreational UA owners must display their name, address, and telephone number on the aircraft, but does not specify where this identifying information needs to be placed on the aircraft except that it has to be affixed to the exterior of the device. TC submits that this allows for the identification of the pilot, who may be some distance from the UA, in a timely manner in the event of an accident or incident, and gives law enforcement agencies the required tools to enforce non-compliance. TC maintains that this method of identification places greater accountability on recreational users and expects it will result in a reduced number of incidents.
10. To provide some context, TC referred to the current regulations for the identification and registration of other aircraft, which are defined in sections 202.01 and 202.13 of the CARs, which state that:

    202.01 (1) Subject to subsections (2), no person shall operate an aircraft in Canada unless its marks are visible and are displayed

    1. in the case of a Canadian aircraft, in accordance with the requirements of the Aircraft Marking and Registration Standards; and
    2. in the case of an aircraft registered in a foreign state, in accordance with the laws of that foreign state.

    202.13 (1) This section does not apply in respect of an aircraft that is

    1. a hang glider; or
    2. a parachute.

    (2) Except as otherwise authorized under subsection 202.14(1) or 202.43(1), no person shall operate an aircraft in Canada unless it is registered in Canada, in a contracting state or in a foreign state that has an agreement in force with Canada that allows an aircraft that is registered in that foreign state to be operated in Canada.

11. In addition, the CARs also contain requirements for the publication of the Canadian Civil Aircraft Register (CCAR):

    202.69 (1) The Minister shall establish, maintain and publish a register of aircraft, to be known as the Canadian Civil Aircraft Register, in which there shall be entered, in respect of each Canadian aircraft for which a continuing or temporary certificate of registration has been issued,

    1. the name and address of each registered owner;
    2. the registration mark issued pursuant to section 202.02; and
    3. such other particulars concerning the aircraft as the Minister considers necessary for registration, inspection and certification purposes.

    (2) The Minister may publish information that has been entered in the Canadian Civil Aircraft Register in respect of a Canadian aircraft.

12. The CCAR is a publically available database that contains the names, aircraft information and addresses of registered aircraft owners in Canada.^{Footnote 3} The database is searchable by owner name, aircraft name, model number, or serial number.
13. TC submits that the identification and registration requirements in the Interim Order are in line with TC’s obligation to the International Civil Aviation Organization (ICAO), which requires that a searchable database exist of all aircraft registered in Canada. TC also maintains that this system of identification would also satisfy the requirements that currently exist pursuant to sections 202.01 and 202.69 of the CARs.
14. TC maintains that the Interim Order is a proactive measure to address the untenable risk to the public and the immediate and significant risk to aviation security by recreational UA users until new regulations come into force.
15. On July 15, 2017, new UAV regulations were proposed in the Canada Gazette.^{Footnote 4} These proposed regulations introduced two-tiered registration/identification requirements for different physical operating environments. Specifically, they proposed that recreational operators who intend to fly their UA in a ‘complex’ operating environment be required to be registered and have an issued aircraft mark entered in the CCAR. TC advised that those registration requirements would be done in a manner similar to other aircraft in accordance with sections 202.01 and 202.13 of the CARs. A ‘complex’ environment will be classified as: an urban area, close proximity to an airport, or operating within controlled airspace.
16. However, TC also explained that, due to the large number of recreational UAs, the regulations proposed in July 2017 did not contain requirements for all UAV operators to formally register their aircraft. TC advised that in order to protect the current system of registration in the CCAR from an overwhelming flood of registrations, it was decided that recreational users who are not operating in complex environments will not be required to register, but would still be required to display the owners name, address and telephone number on the UA for identification purposes.
17. Following the publishing of the proposed new regulations in the Canada Gazette on July 15, 2017, TC held public and online consultations to obtain feedback regarding the proposed new rules.^{Footnote 5}
18. We contacted TC to obtain an update on the status of the proposed UAV regulations following this consultation process. TC advised that a number of submissions to TC raised privacy concerns regarding the requirement to display personal contact information on the devices.^{Footnote 6} In our discussion, TC provided assurances that the privacy concerns of the public were taken into consideration, and as a result, TC explained that it is redrafting the regulations for publication in the Canada Gazette Part II in 2018. The exact publication date is undecided.
19. Until the final regulations become law, recreational users must comply with the rules in the revised Interim Order, including the requirement to display contact information on the device.^{Footnote 7}

Application

20. In making our determination, we considered sections 3, 4, 5 and 8 of the Act.
21. Section 3 defines personal information as information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing: information relating to race, national or ethnic origin, colour, religion, age, marital status, education, medical, criminal or employment history, financial transactions, identifying numbers, fingerprints, blood type, personal opinions, etc.
22. Section 4 provides that personal information collected by a government institution must relate directly to an operating program or activity of the institution.
23. Section 5 states that federal institutions shall, wherever possible, collect personal information that is intended to be used for an administrative purpose directly from the individual about whom it relates, except where the individual authorizes otherwise or where personal information may be disclosed to the institution under subsection 8(2).
24. Subsection 8(1) states that personal information can only be disclosed with an individual's consent, or in accordance with one of the categories of permitted disclosures outlined in subsection 8(2) of the Act.

Analysis

25. The complainants alleged that TC’s Interim Order was in contravention of the disclosure provisions of the Act because it contained a requirement for the owner of a UA to clearly display their name, telephone number and address on the device while it is in operation.
26. The complainants also raised concerns that TC is forcing individuals subject to the order to expose and release personal and private information to the general public and other institutions without their consent.
27. Canadian civil aviation is the responsibility of the Minister of Transport under the Aeronautics Act, which provides the Minister with the authority to develop regulatory requirements under the CARs.^{Footnote 8}
28. Section 4.9 of the Aeronautics Act sets out the general regulatory powers respecting aeronautics, and includes a provision that allows for regulations to be established regarding the registration and identification of aeronautical products.^{Footnote 9}
29. Our investigation confirmed that the Minister of Transport implemented the Interim Order on March 13, 2017, pursuant to subsection 6.41(1) of the Aeronautics Act.
30. Subsection 6.41(1)(a) of the Aeronautics Act provides the authority for the Minister of Transport to make an interim order to deal with a significant risk, direct or indirect, to aviation safety or the safety of the public.
31. Based on the foregoing, we are satisfied that there is a clear authority for the Minister of Transport to issue an interim order to address a risk to aviation safety or the safety of the public.
32. We agree that an individual’s name, personal address and telephone number are personal information as defined by section 3 of the Act.
33. However, while we do appreciate the complainants’ concerns that this requirement involves the use of personal information as a means of identifying the owner of a UA operating for recreational purposes, we are of the view that the requirement in the Interim Order does not trigger a collection of personal information by TC pursuant to sections 4 and 5 of the Act.
34. The identification requirements set by TC simply places an onus on a UA operator to clearly mark the device with contact information if it is intended to be operated within the parameters of the Interim Order. The disclosure provisions of the Act only apply to personal information under the control of a government institution. As such, because the requirement does not actually result in a collection of personal information by TC, the disclosure provisions of the Act therefore do not apply.
35. Consequently, we find there has been no violation of the Act in this case.
36. Nevertheless, in the course of our investigation we did consider the broader privacy implications with respect to the use of personal information as a means of identification in this context, which is the basis of the complainants’ allegations.
37. TC submits that the Interim Order was a proactive measure to address the untenable risk to the public and the immediate and significant risk to aviation safety posed by recreational UAV users prior to new regulations coming into force.
38. On July 15, 2017, proposed regulations amending the CARs with respect to unmanned aircraft systems (UAS) were published in the Canada Gazette, and the public and interested stakeholders were consulted on the new rules.^{Footnote 10}
39. The complainants all argued that all other federally and provincially regulated forms of transport in Canada utilize registration numbers to identify vehicles, rather than requiring users to display personal contact information. TC advised that similar privacy concerns regarding the identification requirements were raised in the course of its public consultations on the proposed regulations.
40. In the course of this investigation, TC made a case suggesting that regulations for registration / identification places greater accountability on recreational users that will ultimately result in a reduced number of incidents, and will also allow TC and law enforcement to enforce non compliance. It also stressed that the method of identification it proposed was in line with TC’s obligation to the (ICAO), which requires a searchable database for all aircraft registered in Canada. This would protect the current CCAR system from a flood of registrations, while still ensuring that the risks are addressed.
41. We note that, unlike other vehicles which require the operator to carry identification while in operation, UA operators are not physically with their craft. We therefore recognize that the requirement in the Interim Order to display the owner’s name, address and telephone number is intended to compensate for this physical separation.
42. In the early stages of developing these proposed amendments, our Office wrote members of the Canadian Aviation Regulation Advisory Council (CARAC) to provide comments regarding the notice of proposed amendment to the CARs published by TC in the CARAC Activity Reporting Notice, no. 2015-12 (May 28, 2015).
43. In our correspondence, sent August 27, 2015, our Office pointed out that one of the widely acknowledged challenges by all regulators involved in UAV issues is the reliable ability to readily identify operators when problems arise. We noted that attribution matters for any technology that can be deployed in communal, public or private spaces where individuals can be inappropriately targeted or technology misused and where complaints arise.^{Footnote 11}
44. While we did not recommend any particular mode of identification, we emphasized that a standardized means for identification would be essential to ensuring there is accountability, both for privacy and safety concerns that could arise with the operation of UAV.^{Footnote 12}
45. In consideration of the above, and understanding the context of the rapidly expanding recreational use of these devices and the overarching safety concerns of TC, we are satisfied that the method of identification required by the Interim Order is practical and reasonable in the interim.
46. Moreover, following our discussions with TC in the course of this investigation, we are also satisfied and assured that it intends to rework the identification and registration requirements in the final regulations expected to be published in 2018, in order to address the privacy concerns of recreational UAV operators going forward.
47. For the above reasons, we do not have any recommendations to make in the context of this investigation but do intend to monitor the development of the final regulations as this is an area that is continuing to evolve.

Finding

48. Based on the foregoing, the complaints are considered not well-founded.