Robots can pose - or can appear to pose - a threat to life, property, and privacy. May a landowner legally shoot down a trespassing drone? Can she hold a trespassing autonomous car as security against damage done or further torts? Is the fear that a drone may be operated by a paparazzo or a peeping Tom sufficient grounds to disable or interfere with it? How hard may you shove if the office robot rolls over your foot? This paper addresses all those issues and one more: what rules and standards we could put into place to make the resolution of those questions easier and fairer to all concerned.
The default common-law legal rules governing each of these perceived threats are somewhat different, although reasonableness always plays an important role in defining legal rights and options. In certain cases - drone overflights, autonomous cars, national, state, and even local regulation - may trump the common law. Because it is in most cases obvious that humans can use force to protect themselves against actual physical attack, the paper concentrates on the more interesting cases of (1) robot (and especially drone) trespass and (2) responses to perceived threats other than physical attack by robots notably the risk that the robot (or drone) may be spying - perceptions which may not always be justified, but which sometimes may nonetheless be considered reasonable in law.
We argue that the scope of permissible self-help in defending one's privacy should be quite broad. There is exigency in that resort to legally administered remedies would be impracticable; and worse, the harm caused by a drone that escapes with intrusive recordings can be substantial and hard to remedy after the fact. Further, it is common for new technology to be seen as risky and dangerous, and until proven otherwise drones are no exception. At least initially, violent self-help will seem, and often may be, reasonable even when the privacy threat is not great - or even extant. We therefore suggest measures to reduce uncertainties about robots, ranging from forbidding weaponized robots to requiring lights, and other markings that would announce a robot’s capabilities, and RFID chips and serial numbers that would uniquely identify the robot’s owner.
The paper concludes with a brief examination of what if anything our survey of a person's right to defend against robots might tell us about the current state of robot rights against people.'Public Opinion and the Politics of the Killer Robots Debate' by Michael C. Horowitz comments
The possibility that today’s drones could become tomorrow’s killer robots has attracted the attention of people around the world. Scientists and business leaders from Stephen Hawking to Elon Musk recently signed a letter urging the world to ban autonomous weapons. Part of the argument against these systems is that they violate the public conscience provision of the Martens Clause due to public opposition, making them illegal under international law. What, however, does the US public think of these systems? Existing research suggests widespread US public opposition, but only asked people about support for autonomous weapons in a vacuum. This paper uses two survey experiments to test the conditions in which public opposition rises and falls. The results demonstrate that public opposition to autonomous weapons is extremely contextual. Fear of other countries or non-state actors developing these weapons makes the public significantly more supportive of developing them. The public also becomes much more willing to actually use autonomous weapons when the alternative is sending in US troops. Beyond contributing to ongoing academic debates about casualty aversion, the microfoundations of foreign policy, and weapon systems, these results suggest the need for modesty when making claims about how the public views new, unknown, technologies such as autonomous weapons.In New Zealand the Privacy Commissioner has released Case Note 267458 [2015] NZ PrivCmr 6 regarding an objection to filming via a broadcaster's drone flying near his apartment.
The Commissioner states
We recently completed our first investigation into a complaint about a drone. This concerned Sky TV using a drone with a camera to film a cricket match. During the game the drone flew close (within 10 metres) to the complainant’s apartment which overlooked the cricket venue. The complainant was irritated by this and gave the drone “the fingers”.
The complainant complained to us that he thought the drone may have captured highly sensitive information in an unreasonably intrusive manner. He said he was unsure whether the drone had been filming or who may have seen the footage. He had not given consent.
This complaint raised issues under principles 1 - 4 of the Privacy Act 1993 which deal with the collection of personal information. These principles specify when personal information can be collected and for what purpose; what an individual should be told when their information is collected, and how information should be collected.
We contacted Sky TV about the complaint. Sky TV said that when their producer wanted to look at footage from the drone, he would radio the drone operator and inform him that he would begin recording the drone visuals from the air.
Sky TV said that despite how it appeared, the drone was not recording footage the entire time it was in the air. Sky TV accepted that its drone may have flown past the complainant’s property, but said the drone had not recorded or broadcast images of the complainant, or the inside of his property.
Sky TV also said the TV control room did not view any footage of the complainant or his property. Sky TV said it did record and broadcast coverage of two women who were on the balcony of an apartment. The Sky TV drone operator who was standing on a tower could, by line of sight, see the two women on their balcony. He indicated by hand gestures that he wanted to film them and by return hand gestures they indicated their consent to that recording. This was the only footage that was broadcast of identifiable individuals.Consent by hand gestures and happy faces?
The Commissioner further states
For us to find a breach of principles 1 – 4 of the Act, personal information needs to be collected. There was no evidence in this instance that Sky TV had collected information about the complainant, therefore in this case we found no breach of the Privacy Act.The complaint was also investigated by the Broadcasting Standards Authority, counterpart of ACMA, which found no breach under the Broadcasting Act 1989 (NZ).
The Victorian Law Reform Commission's Photographing and Filming Tenants’ Possessions for Advertising Purposes report is now available. It quotes my submission regarding privacy aspects.
The Terms of Reference for the inquiry were
The Victorian Law Reform Commission will consider and review aspects of the Residential Tenancies Act 1997 (Vic) and other laws relevant to the practice of publishing photographs of residences which include tenants’ possessions when advertising rented properties for sale or lease.
The Commission will: • Identify the practices that are commonly followed by landlords and landlords’ agents who photograph tenanted residential properties. • Examine the effect of the practices on tenant privacy, security and possessory rights, as well as the tenant’s ‘right to quiet enjoyment’ under the Residential Tenancies Act 1997 (Vic) (s 67). • Determine the source, scope and adequacy of the legal basis on which landlords and their agents rely when photographing and publishing images of tenants’ possessions. • Consider whether the current law provides adequate access for landlords and their agents for the purposes of advertising rented premises for sale or lease. • Consider whether the current avenues of dispute resolution available to tenants, landlords and landlords’ agents are sufficient and effective if disputes arise.
The Commission will consider legislative developments in Australian and international jurisdictions, with a particular focus on Queensland and Tasmania.The report states
Although the Residential Tenancies Act 1997 (Vic) (RTA) reflects several decades of debate about how to balance the interests of tenants and landlords, it does not address the practice of entering the leased premises to take or use advertising images of tenants’ possessions.
In 1997, when the Act was adopted, Google did not exist, almost all household internet access in Australia was via dial-up connection, and prospective tenants and buyers found a home by looking at brochures and physically inspecting the property. In today’s digital world, the online distribution of advertising images transcends physical boundaries. While this has enhanced the capacity of owners to reach prospective tenants and buyers, it has also triggered tenant concerns about their inability to control the dissemination of personal and sensitive information, and about their exposure to theft and personal harm.
This report forms part of the Commission’s community law reform program, which enables members of the community to contribute their ideas about how the law could be improved. Under the Victorian Law Reform Commission Act 2000 (Vic), the Commission may initiate inquiries into issues of limited legal size and scope but of general community concern. The Commission initiated this inquiry after the Tenants Union of Victoria expressed concern that the taking and use of advertising images is not supported by a clear legislative framework, leaving tenants uncertain about their rights.
While a number of landlords and agents have been taking and using advertising images of tenants’ possessions without obtaining tenant consent in the belief that it is lawful for them to do so, the Commission is of the opinion that they are mistaken. It is unlawful for a landlord or agent to enter other than in accordance with the RTA and the Commission considers that the RTA does not permit entry for the purpose of taking advertising images without tenant consent.
In this environment, practices have emerged that often leave tenants beholden to the goodwill and professionalism of landlords and agents when it comes to responding to tenants’ concerns. While many landlords and agents fairly negotiate with tenants to address their concerns, too often this is not the case.
In response to this issue, legislators in Queensland have introduced a tenant consent requirement when a landlord or agent wishes to use advertising images that show tenants’ possessions. The Commission is of the view that this unduly restricts the capacity of landlords to advertise their properties effectively.
The Commission’s recommendations adopt a practical middle ground between the current positions in Victoria and Queensland. The Commission proposes that an express right be given to landlords to take and use advertising images, coupled with appropriate safeguards for tenants. In modernising the law, the Commission has sought to maintain a fair balance between the desire of tenants to live in their homes free from unwanted interference, and the desire of landlords to sell and lease their properties.The report goes on to state
This report examines the law relating to photographs and videos of tenants’ possessions that are used to advertise properties for sale or lease.
Right to enter
Under the Residential Tenancies Act 1997 (Vic) (RTA), a landlord or agent may enter a rental property at any time with tenant consent, provided they enter within seven days of obtaining consent. Evidence provided to the Commission suggests that landlords and agents often ask tenants for permission before entering to take advertising images of tenants’ possessions. However, the Commission has also been told of a number of cases in which advertising images of tenants’ possessions have been taken or used without tenant consent, causing distress and harm to the tenants involved. The central question in these situations is whether landlords and agents have a right to enter to take advertising images of tenants’ possessions without first obtaining the tenants’ consent.
The RTA lists several grounds upon which landlords and agents may enter a rental property without tenant consent. Taking advertising images is not specifically listed as a ground for entry. In this report, the Commission reviews this section of the Act, before reaching the conclusion that these grounds do not establish a right of entry to take advertising images. It follows that entry for this purpose without tenant consent is unlawful.
The Commission also considers whether the law sufficiently protects the right of landlords to sell their properties while addressing the legitimate concerns of tenants in relation to the taking and use of advertising images that show tenants’ possessions. The Commission is of the opinion that it does not. Accordingly, it recommends establishing a right of entry for landlords and agents that is subject to the legitimate concerns of tenants. These concerns relate to possessions that identify the tenant, reveal sensitive information about the tenant or place the tenant at risk of theft or personal harm.
Right to use
The Commission was told that tenants have concerns about advertising images of their possessions being re-used years after they were taken, as well as images that were taken for other purposes being used in advertising material. In both of these instances, the Commission recommends placing an obligation on landlords and agents to obtain the tenants’ written consent before using the images.
In this report, the Commission reviews stakeholder feedback on the notice of entry provisions in the RTA. It then recommends ways to enhance communication among the parties involved if entering to take advertising images were included in the RTA’s grounds for entry. These recommendations include extending the notice period to seven days, requiring additional information in the notice of entry and permitting the delivery of notices via electronic communication.
Quiet enjoyment
The RTA states that landlords must take reasonable steps to ensure the tenant has quiet enjoyment of the rental property.4 The common law right to quiet enjoyment prohibits landlords and agents from substantially interfering with the tenant’s right to possess the property and enjoy it for all usual purposes.5 The Commission concludes that the right to quiet enjoyment would not ordinarily assist tenants with concerns about advertising images, a finding that makes the Commission’s recommendations all the more important.
Underlying many of the concerns of tenants, landlords and agents is the fundamental role online advertising now plays in selling and leasing a property. The very exposure that enhances the capacity of owners to sell and lease their properties leaves many tenants feeling vulnerable. The Commission’s recommendations strike a balance between the needs of landlords and agents on the one hand, and the needs of tenants on the other.The Commission's recommendations are
Right to enter
1 The landlord and landlord’s agent should have an express right to enter to take advertising images.
2 When exercising the express right to enter to take advertising images:
(a) The landlord or landlord’s agent must not take, or permit to be taken, an advertising image where the tenant has objected in writing to the image being taken because it would show: (i) a possession that directly identifies the tenant or another occupant, (ii) a possession that reveals sensitive information about the tenant or another occupant, regardless of whether that occupant’s identity is also revealed, or (iii) a valuable possession which places the tenant at a heightened risk of theft and it would be unreasonable to expect the tenant to remove or conceal the possession.
(b) The landlord or landlord’s agent must not take, or permit to be taken, an advertising image showing a tenant’s possessions where the tenant has objected in writing to the image being taken because: (i) the tenant or other occupant is at risk of family or personal violence, and (ii) the image would show possessions that may reveal the identity of that occupant to the person posing the risk.
Right to use
3 Where a landlord or landlord’s agent wishes to use an advertising image showing a tenant’s possessions more than 12 months after the image was taken, the landlord or landlord’s agent should be required to obtain the written consent of the tenant or former tenant before using the image.
4 Where an image showing a tenant’s possessions was taken for a purpose other than advertising, the landlord or landlord’s agent should be required to obtain the tenant’s written consent before using the image for advertising purposes.
Notice of entry
5 When relying on the grounds of entry in the Residential Tenancies Act 1997 (Vic) to enter to take advertising images, the landlord or landlord’s agent should be required to: (a) provide the tenant with at least seven days notice; and (b) enter between 8 am and 6 pm except on public holidays, unless the tenant consents to a time of entry outside those hours.
6 The landlord or landlord’s agent should be required to include the following information in a notice of entry to take advertising images: (a) the purpose of entry; (b) the date and time of entry; (c) the name and contact details of the landlord/agent; (d) the tenant’s opportunity to remove possessions from view; (e) the tenant’s right to object to images being taken in certain circumstances; and (f) the tenant’s right to be present when images are taken.
7 It should be lawful for the landlord and landlord’s agent to deliver a notice of entry via electronic communication where the tenant has consented.
8 The standard tenancy agreement should make provision for parties to consent to the delivery of a notice of entry via electronic communication.
9 If a tenant states that they wish to be present when advertising images are taken, the landlord or landlord’s agent should be required to make a reasonable effort to arrange for the visit to occur at a time when it is convenient for the tenant to be present (having regard to the work and other commitments of both the tenant and the person entering).
