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
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,
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
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
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
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
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.