On February 16, the Tunisian Minister of Transport and Logistics, Moez Chakchouk, announced the launch of public consultations on the draft government order concerning the operation of remotely piloted aircraft in Tunisia. The Minister’s tweet promises that the government will take into account the views of citizens before approving this order.
Although unheard of in the region, public consultations in Tunisia are not a precedent. The cabinet of President Mehdi Jomaa initiated this participative approach in 2014. However, introducing the draft government order on the “regulation of the technical requirements applicable to remotely piloted aircraft” to the public still speaks in favor of the Minister of Transport and Logistics. Although this was not the first time a legal text has been announced to the public, it did educate citizens about the proposal before its adoption, allowing them to share their observations and opinions.
While some supported the draft government order on licensing the operation of drones in the country, others saw that it would put legal restrictions on the use of drones. In fact, drones were practically prohibited without any specific legal basis, and no regard was given to the protection of private data.
An Unwritten Law Against Drones
Tunisia had no official law prohibiting the use of drones. Nonetheless, “Their use was prohibited despite the absence of any clear law in this regard. Anyone who owned drones was harassed, banned and had their device confiscated,” according to Public Law and Policy Consultant Riadh Obeid in a conversation with SMEX.
Until the Minister’s announcement of the new draft government order, authorities in Tunisia were generally opposed to drones. Tunisian security agencies seized drones, regardless of how they were being used, and customs confiscated them before they entered the country, considering them “prohibited goods” and “critical to smuggling operations.”
If this government order is approved, citizens will be able to use drones without fear of harassment. Nonetheless, practices related to drones in Tunisia “will remain subject to the principle of prohibition, until it is legalized in a way that overrides the established Tunisian legal wisdom,” according to Obeid. He explains that: “The text of the draft government order is lengthy—containing 92 chapters—and involves excessive caution. This could mean that drones can only operate within the framework of a punitive and constrictive mindset.”
The draft government order generally requires the drone owner to obtain prior authorization, which further restricts their use, especially for personal purposes.”Public administration should monitor economic activity after a person starts it, rather than before they do,” insists Obeid. Pre-licensing means setting “additional obstacles and creating more administrative restrictions, which will further waste the drone owners’ time and money. Not only that, but it’ll also open a door to bribery and patronage, since it is up to the administration to grant or reject the license.”
The licensing process is incompatible with the Tunisian authorities’ efforts to revitalize the economy. In Government Order No. 417 of 2018, the Tunisian Government considered that economic activities could be carried out without a license, limiting the need for a license to a specific number of activities in fields such as natural resources, transport, financial services, education, health and communications. In 2016, the Tunisian Chamber of Deputies approved “Investment Law No. 71,” which reduces the number of licenses required to initiate economic activities and allows for public-private partnership. Chapter 4 of this law considers that “the lack of response after the expiration of the time limits provided for in paragraph 3 of this Chapter shall be considered an authorization if the request meets all conditions.”
Consequently, the draft government order on “remotely piloted aircraft” is contradictory to the legislative and regulatory spirit of previous laws and orders, “as it requires obtaining prior authorization, rather than establishing criteria for the exercise of the economic activity prior to obtaining a license,” according to rights activist Obeid. He also raises the question of whether the Government considers that the use of drones falls under the activities requiring authorization in accordance with Government Order No. 417, adding that “a drone is not a traditional means of transport, but rather a tool that can be used to one’s advantage in many economic activities, such as smart agriculture, the study of natural phenomena, disaster assistance, construction, architecture, etc.”
Obeid therefore emphasizes that the government order must not enhance prohibition, but should rather legalize, regulate and monitor the use of drones and sanction transgressors.
When the government’s primary concern is safety, what about privacy?
The proposed draft government order is extremely technical, with more focus on limitations rather than on the protection of rights. The technical regulations in the draft make little distinction between the various uses of drones, and they are many. It is too complicated for owners who use their drones for everyday purposes. According to Obeid, this leads to discrimination between those who are able to meet the requirements and those who are not.
One worrying aspect of the draft order is the number of technical regulations that might seem obscure to a casual drone user: geographical coordinates, airspace, civil aviation, altitude, height, the controller, the need for a license to verify the competence of the controller, the need to insure the drone, conformity to other laws such as the Import Law and the handling of radio-frequency devices. Obeid points out that “These requirements resemble restrictions rather than regulations.”
These absurd regulations suggest that the government has some serious security and defense concerns, according to Obeid. He considers that consulting “the Ministry of National Defense and the Ministry of Interior regarding the draft government order is insufficient.” He also shed light on certain aspects that were neglected in the draft, such as the economic and investment dimensions of Government Order No. 417 of 2018 on licenses for economic activities, considering it a form of “poor prioritization.”
Privacy protection should have been given utmost priority, with or without a license. Whilst the bill relating to remotely piloted aircraft in Chapters 14 and 21 mentions the need to “respect the rights associated with personal life and the environment and to use the remotely piloted aircraft in such a way as to reduce inconvenience to persons or animals,” little emphasis has been placed on personal data that’s easily collectible using such aircraft, via photographs and topographic data.
Chapter 4 of the Act on the Protection of Personal Data issued in 2004 considers that personal data encompasses “all data, whatever its origin or form, which identifies a natural person or makes him or her identifiable, whether directly or indirectly, except for information relating to public life or information that is legally regarded as such.” Since drones can take pictures of people, properties and topographic features that can help identify a person, and since they can stealthily and instantly capture images from areas that are otherwise inaccessible to humans, Obeid was left with this pressing question:”How come the project didn’t focus protecting people’s data and privacy? Why weren’t authorities tasked with the enforcement of this protection, instead of setting restrictive licenses and regulations?”
Obeid asserts that the law takes precedence over government orders in Tunisia and that “the government order on remotely piloted aircraft is subject to the Personal Data Protection Act, regardless of my opinion of this Law.”
If public consultations are non-binding, can they still be useful?
The government order is obviously still a draft and has not yet been approved. Tunisian citizens are still posting their comments on the forum dedicated to the collection of the public’s observations.
Although public consultations are non-binding, the Government does take their outcomes into consideration to a certain extent, according to Obeid. He asserts that this practice must continue: “It is always useful to put legal texts under public review before they are adopted. Civil society has a real influence on draft government orders and laws in Tunisia.”
One example of the importance of public consultation is the “Improvement of Investment Climate” Law of 2019. Obeid points out that, “At the time, the government consulted with the public and private sectors and gathered ideas from economic activists to draft a law that introduces a series of quick and short-term reforms aiming to enhance the investment climate.” Authorities were able to enact a law that “meets the needs of the private sector and takes into consideration the concerns of the public sector.”
Another example is the draft law to establish biometric ID cards, introduced by the Ministry of Interior in 2018. According to Obeid, “The law was poorly designed, as it did not specify the use of the personal data collected and by whom it can be used, besides the Ministry of Interior.” Obeid said that civil society rejected the law, conducted several reviews and persuaded deputies to make many amendments. The Ministry of Interior withdrew it on voting day, however, proclaiming that it would have been difficult to amend it in a way that projects a positive image. This year, the Ministry of Interior presented an amended biometric ID bill to the Chamber of Deputies to be discussed and voted upon, after adding another draft law on biometric passports.
No matter what the outcome of public consultations is, citizens must have access to legal texts that would have a direct effect on their daily lives. They must have the choice to discuss and take part in the decision-making process. While participatory initiatives between authorities and the people are seen as a means of transparency and civic participation, the whole process remains incomplete as long as the government does not heed citizens’ opinions. Instead of investing so much time in devising impossible regulations and restrictions, the government must first prioritize facilitating the affairs of its citizens and ensuring their personal data is protected.
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