7 BIG PROBLEMS WITH COUNTER DRONE TECHNOLOGY (DRONE JAMMERS, ANTI DRONE GUNS, ETC.)


Update: On August 7, 2017, it was reported by the Military Times that  “The Pentagon has signed off on a new policy that will allow military bases to shoot down private or commercial drones that are deemed a threat[.]” This is what was authorized in the National Defense Authorization Act of 2017 which was  passed in December 2016. See below for my discussion on it. The House version of the proposed NDAA of 2018 seeks to expand the use of force to those locations that are “part of a Major Range and Test Facility Base (as defined in section 196(i) of this title).”


A Brief Background on the Brewing Drone Problem

drone-jammer-gun-defender-counter-technologyAs 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.

 

Detectors:

  • Radar
  • 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.

 

Defenders:

  • Jammers
  • Spoofers (for GPS signals)
  • Hackers
  • Sonic – Fox News has a article on how this technology could counter drones.
  • Destroyers
    • Lasers
    • 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

baseball-stadium-tfr-smallThere 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
  • Airports
  • Utilities
  • Chemical Manufacturing
  • Universities

 

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:

§ 130i. Protection of certain facilities and assets from unmanned aircraft

“(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.—

(1) The actions described in this paragraph are the following:

“(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.

“(e) Definitions.—In this section:

“(1) The term ‘covered facility or asset’ means any facility or asset that—

“(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

“(C) relates to—

“(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.

The House version of the proposed NDAA of 2018 seeks to expand the use of force to those locations that are “part of a Major Range and Test Facility Base (as defined in section 196(i) of this title).”

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.

The New York Times reported that the Trump Administration has proposed some language to make much of the counter UAS technology decriminalized. The actual text of the proposal is at the end of the article.

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
  • GPS
  • 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 you just took control over the drone, now YOU are the pilot in command and will need a remote pilot certificate!  See 14 CFR § 107.12; see also §107.19(a).

 

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!

 

 

Conclusion:

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.

 

Actual Text of White’s House NDAA C-UAS Proposal

 

SEC. __. OFFICIAL ACTIONS TO ADDRESS THREATS POSED BY UNMANNED AIRCRAFT SYSTEMS TO PUBLIC SAFETY OR HOMELAND SECURITY.

 (a) AUTHORITY.—Notwithstanding any provision of title 18, United States Code, the head of an Executive department or agency, while respecting privacy, civil rights, and civil liberties, including with regard to the testing of any equipment and the interception or acquisition of communications, may take, and may authorize a covered person to take, the actions described in subsection (b), to the extent otherwise in accordance with law.

 

 (b) ACTIONS DESCRIBED.—The actions described in this subsection are as follows:

 (1) Detect, identify, monitor, or track, without prior consent, an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo, to evaluate whether it poses a threat to the safety or security of a covered facility, location, or installation or a covered operation, including by means of interception of or other access to wire, oral, electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo.

(2) Redirect, disable, disrupt control of, exercise control of, seize, or confiscate, without prior consent, an unmanned aircraft system, unmanned aircraft,

or unmanned aircraft’s attached system, payload, or cargo that poses a threat to the safety or security of a covered facility, location, or installation or a covered operation, including by intercepting, substituting, or disrupting wire, oral, electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo.

(3) Use reasonable force to disable, disrupt, damage, or destroy an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that poses a threat to the safety or security of a covered facility, location, or installation or a covered operation.

(4) Conduct research, testing, training on, and evaluation of any equipment, including any electronic equipment, to determine its capability and utility to enable any of the actions described in paragraphs (1) through (3).

(c) FORFEITURE.—An unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that is disabled, disrupted, seized, controlled, confiscated, damaged, or destroyed pursuant to an action described in subsection (b) is subject to forfeiture to the United States.

 

(d) GOVERNMENT-WIDE POLICY.—The actions described in subsections (b) and (c) may only be taken following the issuance of Federal Government-wide policy prescribing roles and responsibilities for implementing this section. The Federal Government-wide policy shall be developed in consultation with appropriate departments and agencies, including the Department of Transportation to ensure the safety and efficiency of the National Airspace System, and shall—

(1) respect privacy, civil rights, and civil liberties, including with regard tothe testing of any equipment and the interception or acquisition of communications, by, among other things, ensuring that information is intercepted, acquired, accessed, or retained pursuant to subsections (b) only where and for so long as is necessary to support one or more of the department’s or agency’s authorized functions and is accessible only to covered persons with a need to know the information;

(2) prescribe roles and processes, as appropriate, to ensure that departments and agencies take the actions described in subsection (b) in compliance with applicable law and regulation regarding the management of the radio frequency spectrum;

(3) consider each department’s and agency’s responsibilities for the safety or security of its facilities, locations, installations, and operations in the United States; and

(4) develop standards and procedures for heads of departments and agencies to designate a covered facility, location, or installation, a covered operation, or a covered person, which shall ensure that only individuals with appropriate training and acting subject to Federal Government oversight are designated as covered persons.

(e) IMPLEMENTATION.—

(1) REGULATIONS; POLICIES, PROCEDURES, OR PLANS.—Consistent with any limitations or specifications in the Federal Government-wide policy issued pursuant to subsection (d), the head of a department or agency—

(A) may prescribe regulations to carry out this section; and

(B) shall issue policies, procedures, or plans to carry out this section.

(2) COORDINATION.—Regulations, policies, procedures, or plans issued under this subsection shall develop the actions in subsection (b) in coordination with the Secretary of Transportation.

(3) PRIVACY REVIEW.—Any regulations, policies, procedures, or plans issued pursuant to this section that would result in the monitoring, interception, or other access to wire, oral, electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo shall be reviewed consistent with section 522 of the Consolidated Appropriations Act, 2005 (42 U.S.C. 2000ee-2), to ensure that the regulations, policies, procedures, or plans appropriately protect privacy and civil liberties.

(f) JURISDICTION.—Notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim, including for money damages, against a covered person arising from any authorized action described in subsection (b).

(g) RELATIONSHIP TO OTHER LAWS.—Nothing in this section shall be construed to—

(1) restrict the authority of the United States Government, a member of the Armed Forces, or a Federal officer, employee, agent, or contractor from performing any action described in subsection (b) or (c) that is in accordance with law;

(2) affect the exercise of authority granted by section 130i of title 10, United States Code, and section 4510 of the Atomic Energy Defense Act (50 U.S.C. 2661); or

(3) restrict or limit the authority of the Federal Aviation Administration under 18 title 49, United States Code, to manage the safe and efficient use of the National Airspace System.

(h) DISCLOSURE.—Information pertaining to the technology used pursuant to this section, and any regulations, policies, procedures, and plans issued under this section, shall be exempt from disclosure under section 552(b)(3) of title 5, United States Code, and exempt from disclosure under any State or local law requiring the disclosure of information.

 

(i) DEFINITIONS.—In this section:

(1) The term “covered facility, location, or installation” means any non- mobile asset in the United States that is designated by the head of a department or agency in accordance with standards and procedures established under subsection (d).

(2) The term “covered operation” means—

(A) any operation that is conducted in the United States by a member of the Armed Forces or a Federal officer, employee, agent, or contractor, that is important to public safety, law enforcement, or national or homeland security, and is designated by the head of a department or agency, consistent with the Federal Government-wide policy issued pursuant to subsection (d); and

(B) may include, but is not limited to, search and rescue operations; medical evacuations; wildland firefighting; patrol and detection monitoring of the United States border; a National Security Special Event or Special Event Assessment Ratings event; a fugitive apprehension operation or law enforcement investigation; a prisoner detention, correctional, or related operation; securing an authorized vessel, whether moored or underway; authorized protection of a person; transportation of special nuclear materials; or a security, emergency response, or military training, testing, or operation.

(3) The term “covered person” means any member of the Armed Forces, a Federal officer, employee, agent, or contractor, or any other individual that is designated by the head of a department or agency in accordance with standards and procedures established under subsection (d), acting within their officially designated capacity.

(4) The terms “intercept” and “wire, oral, electronic, or radio communications” have the meaning given those terms in section 2510 of title 18.

(5) The terms “unmanned aircraft” and “unmanned aircraft system” have the meaning given those terms in section 331 of the FAA Modernization and Reform Act 7 of 2012 (49 U.S.C. 40101 note).

(6) The term “United States” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any possessions, territorial seas, or navigable waters of the United States.

(j) SUNSET.—This section shall cease to have effect on December 31, 2022.

 

Section-by-Section Analysis of Proposed Legislation Regarding Official Actions to Address

Threats Posed by Unmanned Aircraft Systems to Public Safety or Homeland Security

Unmanned aircraft systems (UAS) are commercially available, challenging to

detect and mitigate, and capable of carrying harmful payloads and performing

surveillance while evading traditional ground security measures. However, some

of the most promising technical countermeasures for detecting and mitigating UAS

may be construed to be illegal under certain laws that were passed when UAS were

unforeseen. These laws include statutes governing electronic communications,

access to protected computers, and interference with civil aircraft.

Potential liability under such laws restricts innovation, evaluation, and operational

use of technical countermeasures that can address the unique public safety and

homeland security threats posed by UAS while minimizing collateral risk. The

proposed legislation provides a savings clause under title 18, United States Code,

for authorized development or use of such countermeasures.

This legislation provides that development or use of countermeasures against UAS

must be pursuant to a coordinated, government-wide policy. A coordinated

approach is critical to ensure that development and use of technical

countermeasures for detecting and mitigating UAS is consistent with the safety and

efficiency of the National Airspace System (NAS), the protection of privacy, civil

rights, and civil liberties, and other government-wide equities. Indeed, multiple

departments and agencies have responsibility for the safety or security of facilities,

locations, installations, and operations that may be vulnerable to threats posed by

UAS, including the Department of Homeland Security, the Department of

Transportation, the Department of Justice, the Department of Defense, the

Department of Energy, the Department of Agriculture, the Department of the

Interior, and the Office of the Director of National Intelligence. Multiple

departments and agencies also perform important operations that may be vulnerable

to threats posed by UAS, including but not limited to: search and rescue operations;

medical evacuations; wildland firefighting; patrol and detection monitoring of the

United States border; National Security Special Events and Special Event

Assessment Ratings events; fugitive apprehension operations and law enforcement

investigations; prisoner detention, correctional, and related operations; securing

authorized vessels, whether moored or underway; authorized protection of a person

or persons; transportation of special nuclear materials; and security, emergency

response, or military training and operations. The proposed legislation helps to

ensure that authorized members of the Armed Forces and Federal officers,

employees, contractors, and other appropriate persons designated by the heads of

the executive department and agencies consistent with the requirements of the

government-wide policy required by the proposed legislation will not face penalties

for protecting those equities in a way that is consistent with other applicable law,

including the U.S. Constitution.

 

Subsection (a) sets forth the savings clause discussed above. Though many

provisions in Title 18 may conflict with authorized Counter-UAS activities, certain

statutes are especially problematic. For example, sections 2510–2522 of title 18,

United States Code (the Wiretap Act), among other things, subject any person who

intentionally intercepts the “contents” of electronic communications to fines,

imprisonment, and/or civil liability, and sections 3121–3127 of title 18, United

States Code (the Pen/Trap Statute), among other things, generally prohibit the

installation or use of a device to collect “non-content” information of electronic

communications. In addition, section 1030 of title 18, United States Code (the

Computer Fraud and Abuse Act) prohibits unauthorized access to and use of

“protected computers.” These statutes might be construed to prohibit access to or

interception of the telemetry, signaling information, or other communications of

UAS. Furthermore, any attempt to interfere with the flight of UAS that pose a

threat to covered facilities, locations and installations or covered operations may

conflict with section 32 of title 18, United States Code (the Aircraft Sabotage Act),

which among other things, imposes fines and criminal penalties on anyone who

“damages, destroys, disables, or wrecks any aircraft in the special aircraft

jurisdiction of the United States.” In the event of unanticipated conflicts with other

statutes, and in order to avoid criminalizing critically important activities by

government officials that are consistent with the U.S. Constitution, the savings

clause also refers generally to “any provision of title 18, United States Code.”

Congress has previously recognized the importance of ensuring that federal

criminal laws in Title 18 do not inadvertently blunt the development or use of UAS

countermeasures. The National Defense Authorization Act (NDAA) for Fiscal Year

(FY) 2017 contains two sections (Sec. 1697—codified at section 130i of title 10,

U.S. Code—and Sec. 3112) authorizing the Department of Defense, and the

Department of Energy, respectively, to protect certain facilities and assets from

threats posed by UAS. Both sections authorize such activities “[n]otwithstanding

any provision of title 18.”

 

Subsection (b) describes the specific actions referenced in subsection (a), which

relate to the UAS context. The proposed legislation would generally allow

research, testing, training on, and evaluating technical means for countering UAS,

as well as the use of technical means to detect, identify, monitor, and track a UAS

to evaluate whether it poses a threat to the safety or security of covered facilities,

locations, and installations or covered operations. With respect to the use of

technical means to re-direct, disable, disrupt control of, exercise control of, seize,

or confiscate UAS, the proposed legislation would allow such actions in response

to a UAS posing a threat to the safety or security of covered facilities, locations,

and installations or covered operations. Subsection (b)(3) of the proposed

legislation would allow the use of reasonable force to disable, disrupt, damage or

destroy a UAS posing a threat to the safety or security of covered facilities,

locations, and installations or covered operations.

 

Subsection (c) authorizes, but does not require, civil forfeiture of UAS that are

subject to authorized actions described in subsection (b).

 

Subsection (d) provides that the actions in subsections (b) and (c) may be taken

only after the issuance of government-wide policy prescribing roles and

responsibilities for implementing this section. That policy would be developed in

consultation with appropriate departments and agencies, including the Secretary of

Transportation to ensure the safety and efficiency of the NAS. Requiring the

development of government-wide policy ensures that departments and agencies

execute UAS countermeasures in a coordinated and effective manner, and that such

activities are subject to appropriate oversight and control. A whole-of-government  framework also protects the integrity of the NAS, while permitting departments and

agencies to defend covered facilities and operations from malicious uses of UAS.

The proposed legislation requires the government-wide policy to (1) respect

privacy, civil rights and civil liberties; (2) prescribe roles and processes, as

appropriate, to ensure compliance with applicable law and regulations concerning

the management of the radio frequency spectrum; (3) consider each Federal

department and agency’s responsibilities for the safety or security of its facilities

and operations; and (4) develop standards and procedures with respect to

designations of covered facilities, locations, installations, covered operations, and

covered persons, including by requiring that only that only individuals with

appropriate training and acting subject to Federal Government oversight may be

designated as such.

 

Subsection (e) provides that departments and agencies must issue policies,

procedures, or plans to carry out this section, consistent with any limitations or

specifications in the government-wide policy. Departments and agencies may also

issue regulations to carry out this section. Subsection (e)(2) provides that

departments and agencies must develop the actions issued under this subsection in

coordination with the Secretary of Transportation. This provision intends to foster

airspace safety by ensuring that departments and agencies engage with the

Secretary of Transportation early on to identify and mitigate any potential collateral

impacts on the NAS. In the NDAA for FY 2017, Congress similarly recognized the

importance of preserving a coordinating role for the Secretary of Transportation in

the development of the actions for countering UAS. The term “coordination” in

subsection (e)(2) means that the heads of departments and agencies will seek the

views, information, and advice of the Secretary of Transportation concerning any

potential effects on the NAS as department and agencies develop the types of

actions to be taken and the circumstances of execution under this provision. The

Secretary of Transportation will provide such views, information, and advice in a

reasonably prompt manner. If the Secretary of Transportation notifies the head of

a department or agency that taking the proposed actions would affect aviation safety

or NAS operations, the head of the department or agency concerned will work

collaboratively with the Secretary of Transportation to consider proposed actions

to mitigate or otherwise address effects on aviation safety, air navigation services,

and NAS efficiency—consistent with national or homeland security and law

enforcement requirements—prior to finalizing the types of actions authorized to be

taken under this provision.

 

Subsection (e)(3) requires internal review of regulations, policies, procedures, or

plans that would result in the monitoring, interception or other access to wire or

electronic communications.

 

Subsection (f) provides that no court shall have jurisdiction to hear causes or claims,

including for money damages, against a federal officer, employee, agent or

contractor arising from any authorized actions described in subsections (b). This

provision serves to protect individuals taking authorized actions described in

subsections (b) from damages claims and official-capacity claims.

Subsection (g) clarifies that the proposed legislation does not affect Federal

agencies’ authority to continue testing and/or using technical means for countering

UAS that comport with title 18, United States Code, and other applicable law,

including the aforementioned sections of the NDAA for FY 2017. In addition, the

proposed legislation clarifies that it does not restrict or limit the authority of the

Federal Aviation Administration, which remains the exclusive Federal agency with

authority over the nation’s airspace and authority to manage the safe and efficient

use of the NAS.

 

Subsection (h) provides exemptions from disclosure under State and Federal law

for information relating to the technology used pursuant to the proposed legislation,

and specific policies, procedures, or plans issued thereunder.

Subsection (i) clarifies that “unmanned aircraft” and “unmanned aircraft system”

have the meanings given those terms by the FAA Modernization and Reform Act

of 2012. The term “covered facilities, locations and installations” is defined to

mean non-mobile assets in the United States that are designated by the respective

agency head pursuant to standards and procedures developed in government-wide

policy. The term “covered person” is defined to mean any member of the Armed

Forces, a Federal officer, employee, agent, or contractor, or any other individual

that is designated by the respective department or agency head in accordance with

the standards and procedures established in government-wide policy. The term

“covered operations” is defined to mean governmental operations that are

determined by an agency head, consistent with government-wide policy, to be

important to public safety, law enforcement, or national or homeland security.

Subjection (j) provides that the legislation ceases to have effect on December 31,

2022.

Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.