Counter-Drone Law & Technology: We Need a Comprehensive Game Plan.

The Gatwick Airport drone incident has caused us to see the need for counter-drone technology, but while most commentary is focusing on only short-term issues and solutions (“Just shoot it down”), what is not being recognized is the need for a complete end-to-end solution which would involve training law enforcement and prosecutors to arrest and prosecute these types of events to a successful conviction.

Gatwick Airport, which is just south of London, has been shut down repeatedly by numerous sightings of drones flying over the airfield. This has caused a major disruption not only to the passengers at the airport, but also at other connecting airports.

You might have thought, “Why can’t they just shoot it down?” or “Don’t we have some technology that can prevent this? There are different types of counter-drone technology out there. You can classify these technologies typically into two categories: (1) detectors and (2) defenders.  Detectors do just that, detect drones using different methods (radar, radio waves, etc.). Defenders disrupt or destroy the unmanned aircraft using all sorts of creative technology (shotgun shells, jammers, GPS signal spoofers, lasers, and even trained eagles.) Each of the types of technology has a different price tag and effectiveness for different types of scenarios.

Fundamental to understanding the counter-drone technology is a knowledge of law­­, for it is within the law that the technology is used. They cannot be separated. In the United States, there are anti-jamming laws and anti-GPS-spoofing laws.  It is illegal to damage or destroy an aircraft or hack into a drone.  If that was not enough, you potentially open yourself to extra lawsuit liability from plaintiff attorneys whose clients might have been hurt because of the illegal operation.

The liability is because the operation of the technology could cause problems for other people like those using airports. In October 2016, the FAA sent out a letter to airports regarding uncoordinated counter-drone technology, “Unauthorized [drone] detection and counter measure deployments [at airports] can create a host of problems, such as electromagnetic and Radio Frequency (RF) interference affecting safety of flight and air traffic management issues.”

The FAA did some counter-drone research and published in July 2018 a letter which discussed the study:

  • Airport environments have numerous sources of potential radio interference which makes drones hard to detect.
  • “A high level of manpower is required to operate equipment and discern false positives such as when a detection system may falsely identify another moving object as a [drone].”
  • “The primary factor in determining the feasibility of installing a permanent system at an airport is the number of sensors needed to achieve the desired airspace coverage.” Different sensors have unique characteristics, requirements, and coverage distances.
  • Due to the nature of airports being operated by many entities (TSA, FBOs, airport management, etc.) it might be hard to acquire and deploy.
  • Due to the rapidly developing counter-drone technology, it becomes obsolete upon installation.

Basically, it’s not an easy, or cheap, thing to try to stop a drone near an airport.

But can anyone do anything to stop these drones? Yes, multiple federal laws have been passed within the last two years to give counter-drone use authority to Department of Homeland Security, Department of Justice, United States Coast Guard, Department of Energy, and Department of Defense. But even with these new laws, there will still be a need to determine safe and effective rules of engagement regarding these bad drones. DHS and DOJ will be working on this quickly in light of recent event.

So let’s say you have the technology and track down the bad guy, now what? The next two logical steps are arrest and prosecute. But these two steps raise all sorts of issues that even lawyers have a hard time wrestling with. I’ve talked to law enforcement officers who wondered “What in the world am I supposed to do if I catch the bad guy?” The situation is similar to a dog that barks and runs after a car; when it catches the car, it doesn’t really know what to do next.  If you arrest under some state law that was created to stop the drone problem, you run into unlawful arrest and preemption problems. If you think federal law is being violated, are you as a state or local law enforcement officer within your jurisdiction to arrest them?

Assuming you catch the bad guy and turn over the case to a prosecutor, does the state or federal prosecutor even know what to do with this bad guy? The FAA sends out letters of investigation but has historically prosecuted very few individuals or companies flying drones. The U.S. Government Accountability Office May 2018 report listed a total 49 legal enforcement actions from the FAA from June 7, 2007 to May 2, 2018. Department of Transportation’s Inspector General’s Office has done some investigations but overall prosecutions are rare.

Here is what we need – a long-term vision of detecting, defending, and prosecuting the bad drone actors all the way to a successful conviction.

This end goal will help us make decisions going forward. For example, drones do have all sorts of data on them that can be used by law enforcement for tracking down the bad guy and prosecuting them. David Kovar has a presentation on drone data forensics and the National Institute of Standards and Technology even created a database of forensic images of many popular drones to help law enforcement. We would shy away from destructive defenders and try to capture the drone intact so we can try and extract any forensic data from it to lead to an arrest and prosecution.

This end goal of trying to obtain successful convictions would also mean we need appropriate training for law enforcement officers and prosecutors regarding potential problems and solutions that can arise during arrest and prosecution.

In the end, we want only the bad guy to be uncertain and indecisive – not law enforcement.