We are used to thinking about the potential of drones and the ever-new ways in which they can be used. However, it turns out that there are areas of activity where it will definitely not be easy for drones to displace those with personnel on board. What’s more, some common activities – which until recently were perfectly legal – have been banned and it really isn’t difficult to be held accountable for them. It all revolves around the concept of ‘espionage’, which – in drone terms – this study deals with.
Where the drone can’t go the plane will send itself?
Few realise that espionage does not always involve acting from behind the scenes. What is more, there is a certain multilateral agreement that even permits foreign intelligence activities done from the air. The Open Skies Treaty[i] establishes procedures for the flight of aircraft (manned and unmanned later) over foreign territories. With reciprocity, an itinerary can be mapped out in the vicinity of areas crucial to the security of the signatory states (military bases, critical infrastructure, weapons factories, etc.) and strictly defined, predetermined measurements and – already a little more freely – photographs and recordings can be taken over them[ii]. Aircraft and their apparatus are subject to appropriate approval, carried out by experts appointed from among the nationals of the signatory states, in order to avoid the use of unauthorised equipment and recorders with excessive resolutions or other unacceptable parameters. The details of the approval process for aircraft and their equipment are strictly regulated in Annex D of the Treaty.
Not every State bound by the Treaty in question has the relevant equipment. By way of example, Poland, which ratified the Treaty in 1994[iii], leases aircraft from other states, as referred to, inter alia, in paragraph 9 para. 4(a) of the Decision of the Minister of National Defence No. 373/MON of 23 September 2015[iv]. However, regardless of the independent or non-self-implementation of such missions, each contracting state – and there are 134[v] – has the right to access the repository of information collected by the other signatories. The whole project is co-financed by the members of the Treaty, as mentioned in Chapter I, para. 9 of its Annex L, with – as a rule – no navigation and airport charges being levied on them and Poland being no exception (as can be seen from the disposition of §1, para. 4 of the Resolution of the Council of Ministers No. 242/2008 of 4 November 2008[vi]).
In view of the subject matter of the regulation and its importance for the security of nations, and because it implies a de facto authorisation of espionage within one’s own territory, the provisions of the Treaty in question are extremely casuistic, strict and precise. It is not surprising, therefore, that the parameters of the aircraft that may be approved are described in detail. Thus, Article II(4) of the Treaty states that an observation aircraft may only be an unarmed fixed-wing aircraft designated for observation flights, registered by the competent authorities of a State Party and equipped with agreed observation apparatus. Unfortunately – while this definition seems to allow the use of drones to carry out observation operations – paragraphs 16-19 of the cited provision indicate that such aircraft should nevertheless be manned by, inter alia, pilots and independent controllers (not air traffic controllers, but persons supervising the correctness and legality of the mission carried out).
As is to be assumed, for the sake of reducing costs, streamlining the processes that make up observation flight and increasing the certainty of tasking, the contracting parties will allow the use of sufficiently monitored drones. In the author’s view, however, the real pressure to reopen negotiations will arise as a result of further technological advances (in terms of aviation and observation apparatus) and the fact that the Treaty – with all its stringency – can be circumvented by means of unmanned suborbital missions, provided that (simplifying the issue somewhat) the critical – observation – part of the flight is performed above 100 kilometres altitude[vii], i.e. above the presumed boundary of the States’ territory[viii]. Pressure exerted in this way may result in the liberalisation of certain provisions of the Treaty, including allowing more modern, unmanned technology and freer ways of using it to carry out flights so as to retain some control over ‘legal espionage’ and counteract circumvention of regulations. For now, however, the projects in question are an example of an area where unmanned aircraft will not displace manned ones.
Training grounds and placards of fear
More recently, i.e. from 23 September 2023, drone pilots can become ‘spies’ by chance, which is also – necessarily – not good news. Articles 616a and 683a, among others, were then added to the Homeland Defence Act[ix], which – together making up the legal norm – state that it is not allowed to record images of objects of particular importance for the security or defence of the state, objects of the Ministry of Defence and objects of critical infrastructure, as long as these have been marked with a ‘sign prohibiting photography’, and those who violate the above prohibition commit an offence[x] and are subject to arrest or a fine (as a rule, up to PLN 5.000 zlotys[xi]), as well as risk forfeiture of the drone and associated equipment.
This provision is particularly important for drone pilots and can be a source of serious problems because, first and foremost, it can be a challenge to recognise a military facility or to see a sign prohibiting photography from above, and such a sign can appear on very many categories of facilities. What is this critical infrastructure? It seems reasonable to refer to the definition indicated in Art. 3 para. 2 of the Crisis Management Act,[xii] which I quote explicitly:
“[Critical infrastructure shall be understood as] systems and their functionally related facilities, including buildings, equipment, installations, services that are key to the security of the state and its citizens and that serve to ensure the smooth functioning of public administration bodies, as well as institutions and businesses. Critical infrastructures include systems:
a) supply of energy, raw materials and fuels,
b) communications,
c) ICT networks,
d) financial,
e) food supply,
f) water supply,
g) health care,
h) transport,
i) rescue,
j) ensuring continuity of operation of public administration,
k) production, storage, storage and use of chemical and radioactive substances, including pipelines of hazardous substances.
This is not all. Article 3 para. 2a of the Crisis Management Act refers to European critical infrastructure, which – it seems – will also be affected by the photography ban. It includes ‘[…] systems and their functionally related facilities, including buildings, equipment and installations crucial for the security of the state and its citizens and for ensuring the efficient functioning of public administration bodies, as well as institutions and entrepreneurs, designated in the systems referred to in point 2 lit. a and h, in electricity, oil and natural gas, and in road, rail, air, inland waterway, ocean, short-sea and port transport, located in the territory of the Member States of the European Union, the disruption or destruction of which would significantly affect two or more Member States”.
This is an extremely wide range of facilities and their appurtenances. After all, they can include hospitals, transformer stations, antennas, silos, refineries, masts, seaports, power stations, sewage treatment plants, airports, flyovers, banks, clinics, above-ground pipelines, railway and bus stations, and many others. In fact, it is difficult to imagine an urban or suburban landscape captured ‘from a bird’s eye view’ where none of these objects would be present. And, after all, all that is required to impose a binding ban on photography is the placement of signage, even if this is done without any clear reason or comprehensible justification.
It is possible to adopt a certain line of defence which could protect the drone pilot from receiving a severe punishment and forfeiture of his equipment. Indeed, pursuant to Article 7 § 2 of the Misdemeanours Code[xiii], an intentional offence is not committed by a person who remains in ignorance of the circumstances constituting the hallmark of the prohibited act. This means only that if the footage concerns a rather distant object, on which – at first glance – the relevant marking will not be discernible (a military object or a ban on photography), then the pilot may be considered “justified”. However, this is a matter of subjective discretion and does not guarantee effectiveness.
While there has previously been mention of the action of more or less consciously illegally capturing images of specific objects, ‘drone spies’ will be unhappy with yet another piece of information. As of 1 October 2023, the provision in Article 130 of the Criminal Code[xiv] has been fundamentally changed. It relates to the offence of espionage, under which even more behaviour now ‘falls’, i.e. e.g. disseminating false information threatening the stability of the state, expressing willingness to work for a foreign intelligence service, etc. The statutory penalty has also been increased and is now no less than five years’ imprisonment. Obviously, this offence will be more difficult to commit than the offence mentioned in the previous paragraphs, nevertheless it can be assumed that it will occur, for example, if a captured image of critical infrastructure is sold to the ‘wrong people’.
Summary
Whether we would like to become a ‘legal spy’ and operate state-owned drones in Open Skies missions, or whether we are only interested in flying at low altitudes ‘around the chimney’ – currently, the drone community is clearly ‘on censorship’. It is definitely easy today to be held responsible for acts oriented around the concept of ‘espionage’, even if the behaviour is trivial. After all, a chimney – the one mentioned two sentences above – can carry a barely visible, but very expensive, plaque at its base.
Artur Banach, attorney at law
[i] Treaty on Open Skies, done at Helsinki on 24 March 1992 (OJ 2001 No. 103, item 1127);
[ii] W. Dębski, P. Walczykowski, Acquisition of imaging information under the OPEN SKIES treaty, Archives of Photogrammetry, Cartography and Remote Sensing, Vol. 14, Białobrzegi 2004, p. 1;
[iii] Act of 15 December 1994 on the ratification of the Open Skies Treaty (Journal of Laws 1995, No. 14, item 62).
[iv] Decision of the Minister of National Defence No. 373/MON of 23 September 2015 on the performance in the Ministry of National Defence of tasks relating to the implementation by the Republic of Poland of its obligations under international agreements in the field of arms control, disarmament and confidence and security building measures in Europe (Official Journal of the Ministry of Defence 2015, item 269);
[v][v] US Department of State (2023, 6 September) Open Skies Partners, Medium in English: https://www.state.gov/open-skies-partners/ [accessed 7.10.2023];
[vi] Resolution No. 242/2008 of the Council of Ministers of 4 November 2008 on the implementation by the Republic of Poland of obligations resulting from international agreements on arms control, disarmament and confidence-building and security measures (M. P. of 2011, No. 1, item 5);
[vii] International Civil Aviation Organization, The list based on information received from the depositary, the Government of the United States of America about the Parties to the Convention on International Civil Aviation Signed at Chicago on 7 December 1944, Medium in English: https://www.icao.int/secretariat/legal/List%20of%20Parties/Chicago_EN.pdf [accessed 25.09.2023];
[viii] M. Żylicz International, European and National Aviation Law, 2nd edition, Warsaw 2011, p. 36;
[ix] Act of 11 March 2022 on defence of the Fatherland (i.e. Journal of Laws, item 2305, as amended);
[x] Article 684 of the Act of 11 March 2022 on the Defence of the Fatherland (i.e. Journal of Laws, item 2305, as amended);
[xi] Article 24 §1 of the Act of 20 May 1971, Code of Offences (i.e. Journal of Laws 2023, item 2119).
[xii] Act of 26 April 2007 on crisis management (i.e. Journal of Laws 2023, item 122);
[xiii] Act of 20 May 1971, Code of Offences (i.e. Journal of Laws 2023, item 2119);
[xiv] Act of 6 June 1997 Criminal Code (i.e. Journal of Laws 2022, item 1138, as amended).
