**3. Privacy and Data Protection: Legal Issues from the Use of Remote Sensing Technologies for Environmental Monitoring and Environmental Law Enforcement**

Technology has always been a threat to the right to privacy, in other words, to "the right to be le(f)t alone" (Warren and Brandeis 1890). In spite of several attempts that have been made to define privacy, no universal definition of privacy could be created. Although the claim for privacy is universal, its concrete form differs according to the prevailing societal characteristics, the economic and cultural environment (Lucács 2016). There are among others—the following forms of privacy: information privacy and location privacy. Informational privacy indicates much more as informational seclusion, a refugium for the individual. Informational privacy rests on the premise that information about ourselves is something over which individuals may exercise autonomy. Location privacy refers to the right of individuals to move in their "home" and other public or semi-public places without being identified, tracked or monitored (Mitrou 2009). In this sense, the use of remote sensing technologies in the current era may interfere with the rights to informational and location privacy. Observation of private spaces with remote sensing technologies or the location of a person (even without collection of data) or even the correlation of collected data with other

6 Ibid.

<sup>4</sup> Available online: https://ec.europa.eu/environment/legal/compliance\_en.htm (accessed on 5 April 2021).

<sup>5</sup> ESA Workshop Evidence from Space, Document ESA-ISPL/EO 47, 5 October 2010, Available on line: https://www.space-institute.org/wp-content/ uploads/2010/10/Workshop-Information-Package-Final.pdf (accessed on 5 April 2021).

data may reveal information about individuals' (private) life. Especially when using drones also the so called "bodily privacy" could be affected. As "bodily privacy" we understand also the right to keep bodily functions and body characteristics private (Mitrou 2009). Indicatively, regarding the use of remote sensing technologies for monitoring compliance with environmental legislation on vegetation clearance, in a survey of UK and Australian farmers about their attitudes to being monitored using satellite imagery, most farmers were happy to be monitored this way in principle, however, 58% of Australian respondents and 75% of UK respondents agreed that satellite monitoring was "an invasion of their privacy" (Purdy 2011). Similarly, even if people are aware that certain drones are used for conservation purposes, for example for combatting illegal hunting in South Africa, they may nonetheless feel aggrieved (Sandbrook 2015). The use of remote sensing technologies may interfere also with the right to data protection. Privacy and data protection are closely linked but they are not identical. Data protection serves the protection of private life but the relevant rules apply also to personally identified information, which does not fall under the scope of "private life" even in its broad interpretation. Data protection rules are applicable, whenever personal data are processed (Mitrou 2009). The right to data protection will only protect individuals when remote sensing technologies process personal data (which includes collection of personal data). The collection of images, videos, sounds, and the geo-localization data related to an identified or identifiable natural person (according to the definition of Article 4 (1) of General Data Protection Regulation—GDPR) that has been collected by remote sensing technologies and may also be processed by using suitable methods is subject to data protection legislation. According to CJEU case law, personal data are those that "allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them"<sup>7</sup> .

In this sense, very high resolution (VHR) satellite imagery creates considerable challenges for personal data protection, since contextualizing satellite imagery in reference to geographical locations, such as neighborhoods or even houses, can transform an individual in an image from arbitrary to distinguishable (Coffer 2020). Additionally, interactive maps that integrate various types of data, including satellite Earth observation data, into GIS, as well as zooming function available when browsing GIS, may make available personal information linked to a specific geographic location or even an individual (Doldirina 2014). In addition, the application of facial recognition technology or big data analytical software in data collected by remote sensing technologies puts in danger the protection of personal data when it constitutes process of personal data. With regard to drones the threats are more direct, since they can easily observe persons and private spaces and collect personal data, such as persons' locations, relationships etc. Further, what is more: if data subjects are not informed about the use of remote sensing technologies for monitoring purposes their right to informational self-determination and to autonomous and informed decision making is affected. Furthermore, if they are not adequately informed about the data processing equipment, about the purposes of data collection and the identity of who is collecting data as well as the agency's or company's location, that would result in an increased feeling of being under surveillance and a subsequent possible decrease in the legitimate exercise of civil liberties and rights, best known as "chilling effect"<sup>8</sup> .

For this reason, personal data protection law is applicable, so that personal data procession may be only under strict requirements allowed (see below under Section 4.2). Before applying personal data protection law, it must be first checked whether personal data concerns are raised by the use of remote sensing technologies in each particular case.

<sup>7</sup> C-293/12 and C-594/12 *Digital Rights Ireland* para 27, C-203/15 and C 698/15 *Tele 2* para 99 and C-207/16 *Ministerio Fiscal* para 60.

<sup>8</sup> On the chilling and panopticon effect syndrome arising from a large-scale use of drones, see Rachel L. Finn, David Wright and Anna Donovan (Trilateral Research & Consulting, LLP), Laura Jacques and Paul De Hert (Vrije Universiteit Brussel), 2014, Privacy, data protection and ethical risks in civil RPAS operations, 7 November 2014, Available online: http://ec.europa.eu\T1\textgreater{}translations\T1\textgreater{}renditions\T1 \textgreater{}pdf (accessed on 5 April 2021).

For example, regarding the use of remote sensing technologies for the detection of planning breaches, it is remarkable that the Belgium Privacy Commission in its Opinion no. 26/2006 stated that: "The Privacy Commission considered that the satellite images, insofar as they concerned property of natural persons, constituted information about identified or identifiable natural persons which qualified as personal data for the purposes of privacy law, and that the processing of that information by the planning authorities had to be treated as processing of personal data within the meaning of privacy law" (Billiet 2012).
