A Brief Background on the Brewing Drone Problem
As the drone industry is taking off, some individuals and groups have started using drones for malicious purposes around the globe. Many companies are watching the trend and are trying to get into the counter drone industry. They have introduced all sorts of drone guns, anti-UAS shotgun shells, attack birds, net cannons, lasers, missiles, radio signal jammers, radio spoofers, etc.
Types of Counter Drone Technology
The counter drone technology is getting lumped all into one bucket but I think it is best broken up into two categories: (1) detectors and (2) defenders. Keep in mind that these terms are my own.
Some of what has been talked about as counter drone technology are not really counter technology but are just drone detectors. The systems can’t really do anything to STOP the drone, just tell you where the drone is and maybe the operator. Hopefully, police can locate the drone operator and get him to land the drone before anything happens.
- Radio wave receivers
- Audio sensors to “hear”
- Optical sensors to see
These aren’t really a problem legally. The next category is where things get legally complicated fast.
- Spoofers (for GPS signals)
- Electromagnetic Pulse
- High Energy Microwave
- Irritated Property Owners with Shotguns
- Snaggers (a net carried under a drone, shot from an air cannon, or bolo/net shotgun shell projectile.)
- Attack Birds such as Eagles. – I’m sure PETA will love this one.
- Random Stuff: Spears, T-Shirts, Baseballs, Soccer Balls
Industries are Trying to Get Ahead of the Situation
There are many industries that are very interested in using this counter drone technology:
- Defense Sector
- U.S. Government
- Private Security
- Sports Teams and Stadiums
- Amusement Parks
- Chemical Manufacturing
Congress is Starting to Pay Attention
The U.S. Congress is interested in the area and has directed the FAA in Section 2206 of the FESSA of 2016 to “establish a pilot program for airspace hazard mitigation at airports and other critical infrastructure using unmanned aircraft detection systems.” The FAA has since started doing a pathfinder program with some companies to use the technology at airports.
In December 2016, Congress passed the National Defense Authorization Act of 2017 (“NDAA”) which created a brand new section on unmanned aircraft in Title 10 of the United States Code and also directed the Secretary of Defense to “submit to the appropriate committees of Congress a report on the potential for cooperative development by the United States and Israel of a directed energy capability to defeat . . . unmanned aerial vehicles, . . . that threaten the United States, deployed forces of the United States, or Israel.”
Section 1697 of the NDAA amended Title 10 of the United States Code by adding the following:
“(a) Authority.—Notwithstanding any provision of title 18, the Secretary of Defense may take, and may authorize the armed forces to take, such actions described in subsection (b)(1) that are necessary to mitigate the threat (as defined by the Secretary of Defense, in consultation with the Secretary of Transportation) that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset.
“(b) ActIons Described.—
“(A) Detect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent, including by means of intercept or other access of a wire, oral, or electronic communication used to control the unmanned aircraft system or unmanned aircraft.
“(B) Warn the operator of the unmanned aircraft system or unmanned aircraft, including by passive or active, and direct or indirect physical, electronic, radio, and electromagnetic means.
“(C) Disrupt control of the unmanned aircraft system or unmanned aircraft, without prior consent, including by disabling the unmanned aircraft system or unmanned aircraft by intercepting, interfering, or causing interference with wire, oral, electronic, or radio communications used to control the unmanned aircraft system or unmanned aircraft.
“(D) Seize or exercise control of the unmanned aircraft system or unmanned aircraft.
“(E) Seize or otherwise confiscate the unmanned aircraft system or unmanned aircraft.
“(F) Use reasonable force to disable, damage, or destroy the unmanned aircraft system or unmanned aircraft.
“(2) The Secretary of Defense shall develop the actions described in paragraph (1) in coordination with the Secretary of Transportation.
“(c) Forfeiture.—Any unmanned aircraft system or unmanned aircraft described in subsection (a) that is seized by the Secretary of Defense is subject to forfeiture to the United States.
“(d) Regulations.—The Secretary of Defense and the Secretary of Transportation may prescribe regulations and shall issue guidance in the respective areas of each Secretary to carry out this section.
“(A) is identified by the Secretary of Defense for purposes of this section;
“(B) is located in the United States (including the territories and possessions of the United States); and
“(i) the nuclear deterrence mission of the Department of Defense, including with respect to nuclear command and control, integrated tactical warning and attack assessment, and continuity of government;
“(ii) the missile defense mission of the Department; or
“(iii) the national security space mission of the Department.
“(2) The terms ‘unmanned aircraft’ and ‘unmanned aircraft system’ have the meanings given those terms in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).”.
The NDAA is a good first start but itself has flaws as pointed out in an article in Defense News, “[T]he NDAA definition of “covered facility or asset” is limited to those relating to the U.S. nuclear deterrent, U.S. missile defense, or the military space mission. While those are critical places to secure from drones, the authority to prevent such incursions should really apply to all military facilities located within the United States – that should be a first-order item for the House and Senate to address in the 115th Congress at the earliest opportunity.” This article also brought out a good point about counter drone technology needing to be cost effective.
However, Many Older Laws are Still in Place
Great – so the military can go Rambo on the drones. But what about everyone else?
Here is the problem, there are a bunch of laws already in place which currently prohibits this counter drone technology from being used or creates liability when they are used. Also, there are currently no bills seeking to change the federal statutes or any regulatory rulemaking being initiated by federal agencies to change the regulations. We have the Safety Act which can limit some liability, but it does NOT solve the situation.
Legal Issues Surrounding Counter Drone Technology
1. Communications Act of 1934
There are three sections that are problematic:
47 U.S.C Section 301 – Requires persons operating or using radio transmitters to be licensed or authorized under the Commission’s rules (47 U.S.C. § 301). So just to operate the jammer, it needs to be certified.
47 U.S.C. Section 302(b) – Prohibits the manufacture, importation, marketing, sale or operation of unlicensed jammers within the United States (47 U.S.C. § 302a(b)) ( Only exception is to the U.S. Government 302a(c)). Yes, you read that right. Depending on how you market counter drone measures, you could be doing something illegal! This section also prohibits the testing R & D of drone jammers on your own property. FCC laid the smack down on a Chinese company in 2014 with a fine of $34.9 million! Yes, you guessed it, the FCC order cited 302(b). Hobbyking found out that the FCC is very serious about the marketing of unlicensed radio transmitters when they received this FCC order.
47 U.S.C. Section 333 – Prohibits willful or malicious interference with the radio communications of any station licensed or authorized under the Act or operated by the U.S. Government (47 U.S.C. § 333). I think Amazon is wisely planning for the future when they filed for a technology patent designed to allow their drones to fly if jamming is taking place. The jamming could be illegal or legal but we know it will be happening in the future. People will take things into their own hands and might start creating illegal drone jamming equipment as a means of “self-help.”
2. FCC Regulations
47 C.F.R. Section 2.803 – prohibits the manufacture, importation, marketing, sale or operation of these devices within the United States (47 C.F.R. § 2.803) Section 2.807 – provides for certain limited exceptions, such as the sale to U.S. government users (47 C.F.R. § 2.807) The FCC regulations are basically echoing the federal statutes that were created. This means Congress has to either make some exceptions to the Communications Act of 1934 AND nullify or amend these regulations OR just change the underlying statute and leave it to the FCC to start the rulemaking process to repeal this regulation.
3. The United States Criminal Code
18 U.S.C. Section 1362 – prohibits willful or malicious interference to U.S. government communications; subjects the operator to possible fines, imprisonment, or both. This could be used to apply to GPS jamming.
18 U.S.C. Section 1367(a) – prohibits intentional or malicious interference to satellite communications; subjects the operator to possible fines, imprisonment, or both.This could also be used to apply to GPS jamming.
18 U.S.C. Section 32 – Destruction of aircraft or aircraft facilities: “(a) Whoever willfully— (1) sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce;” . . . “shall be fined under this title or imprisoned not more than twenty years or both.” This applies to the lasers, shotguns, and my all time favorite, Russian spear thrower.
18 U.S.C. Section 2511 says, “ (1) Except as otherwise specifically provided in this chapter any person who— (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication[.]”
18 U.S.C. Section 1030 says, “(a) Whoever . . . (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . (C) information from any protected computer[.]” This one applies to the hackers.
4. Drone Jamming Can Affect More than the Drone
On October 26, 2016, the FAA sent out a letter to airports because “Recently, technology vendors contacted several U.S. airports, proposing to conduct demonstrations and evaluations of their UAS detection and counter measure systems at those airports. In some cases, the airport sponsors did not coordinate these assessments and demonstrations with the FAA in advance. It is important that federally obligated airports understand that the FAA has not authorized any UAS detection or counter measure assessments at any airports other than those participating in the FAA’s UAS detection program through a CRDA, and airports allowing such evaluations could be in violation of their grant assurances.” The letter went on to say, “Unauthorized UAS detection and counter measure deployments can create a host of problems, such as electromagnetic and Radio Frequency (RF) interference affecting safety of flight and air traffic management issues.”
Additionally, the American Radio Relay League sent the FCC a warning letter about video transmitters being sold that operate between 1,010- 1,280 MHz beyond legal limits (~ 6 times the legal limit). The letter said, ““Of most concern is the capability of the devices to cripple the operation of the [air traffic control] secondary target/transponder systems[.]” The problem is that one of the frequencies listed can be legally used for amateur radio operations but the rest cannot. This means someone can purchase this equipment and operate it on frequencies not allowed. What operates in that range?
- TACAN /DME
- Air Traffic Control Radar Beacons
- Mode S for Transponders
- TCAS Air Route Surveillance Radars
- GLONASS L1
This adds another layer of difficulty to the mix as you might need to jam frequencies that are being used by other industries because some drone transmitters allow for it.
So jamming drones near airports can cause problems as well as jamming certain frequencies that certain radio transmitters can use that aviation also uses.
Knowing this, now we have another criminal statute in play! 49 U.S.C Section 46308 says, “A person shall be fined under title 18, imprisoned for not more than 5 years, or both, if the person—(1) with intent to interfere with air navigation in the United States, exhibits in the United States a light or signal at a place or in a way likely to be mistaken for a true light or signal established under this part or for a true light or signal used at an air navigation facility; . . (3) knowingly interferes with the operation of a true light or signal.”
5. State Law
The states have also made some of these counter drone technologies illegal! States have anti-hacking laws, anti-messing with aircraft laws, etc. Worse yet, these laws are all over the place with how broad they are, their safe harbors/exemptions, and their punishments. Basically, what is said in this article x 50 states.
6. Civil Lawsuit for Damages
If you violated one of the above crimes, you have potential liability from a civil lawsuit. You can get sued for negligence if you are the proximate cause of an injury by breaching a duty. Your duty is to not commit crimes. (duh) The legal term is negligence per se. So if someone gets hurt because you committed that crime, and they were in the protected class of people the criminal statute was attempting to protect (great point to argue over in the lawsuit), and you were the proximate cause of the injury, you can be liable.
And remember the guys listed above who are interested in this? (Amusement parks, airports, chemical plants, utilities, etc.) They are prime targets for lawsuits and might get listed as a named defendant in a lawsuit.
7. Aviation Statutes & Regulations
If the drone operator was required to obtain an authorization and waiver to fly at that location and you take control of the drone, now YOU have to have a waiver and/or authorizations to fly in that area!
As you can see, there are many legal issues surrounding this area which makes the creation, testing, marketing, and using of counter drone technology problematic.
There are ways that the liability can be lessened, but it cannot be completely removed. Congress and the federal agencies are going to need to start creating regulations that allow for the operation of the equipment in the U.S. Additionally, there is going to be a need for some preemptive language in a future bill that can unclutter this area regarding state laws because I think it is not feasible to have all 50 states attempt to modify their respective laws to accommodate counter drone technology.
Are these all the laws? I don’t know. I stopped looking because I just kept finding an increasing amount of legal issues.
I fear, however, that Congress will not move on this quickly, and neither will the agencies. I believe what laws and regulations do come out will most likely be, as the old legal adage, written in blood.