Big Problems With Counter Drone Technology (Anti Drone Guns, Drone Jammers, etc.)

By |
0 Comment
drone-jammer-gun-defender-counter-technology
Getting your Trinity Audio player ready...

As the drone industry is taking off, some individuals and groups have started using drones for malicious purposes around the globe. We’ve all seen news articles of drones being used for bad and have wondered if there are any counter-drone technologies to stop these acts.  The answer is there are counter drone technologies, they have been around for years with the military, but the issue is how to use anti drone technologies legally outside of a warzone without causing all sorts of havoc.

Many anti drone system companies are watching the news reports of bad drones and are marking their products and/or services. They have introduced all sorts of anti drone guns, anti drone shotgun shells, attack birds, net cannons, lasers, missiles, radio signal drone jammers, GPS signal spoofers, etc.  Some counter unmanned aircraft system technologies can be very disruptive to many people such as those who are navigating a manned aircraft or a car using GPS satellite signals or to people using wireless frequencies such as Wi-Fi.

Let’s dive into what anti-drone technologies are currently available and the legal issues surrounding them. And if you are needing legal help with counter drone problems, consider hiring me! :)

What is a Counter-UAS System (aka Counter-Drone Tech)?

There are all sorts of definitions circling around as to what to call this stuff. Let’s start with the law.

49 U.S.C. § 44801(5) says the term counter-UAS system “means a system or device capable of lawfully and safely disabling, disrupting, or seizing control of an unmanned aircraft or unmanned aircraft system.” Notice that this term does NOT cover detection-only systems and technologies.  This is why the FAA in the charter of the counter-drone aviation rulemaking committee specifically said, “Therefore, the FAA uses the term “UAS detection and/or mitigation” throughout this Charter.”

Basically, you have the view that counter-drone tech is the type of tech that actually stops/defeats the drone while others, including myself, view counter drone tech as being both a detector and defender. I mean just think about it. How can you defeat something you didn’t detect?

Types of Counter Drone Technology Systems

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 the things being advertised as counter drone technology are not really counter technologies but are just drone detectors. The systems cannot really do anything to STOP the drone, just tell you where the drone is and maybe also the operator. Hopefully, police can locate the drone operator on the ground (as opposed to just his home address) and get him to land the drone before anything happens.

Detectors:

  • Ground or air-based radar
  • Radio wave receivers (passive RF receivers, DJI Aeroscope, etc.)
  • Audio sensors to “hear”
  • Optical sensors to see

The use of these anti-drone detectors is not really a problem legally. The only real big issue with detectors is where the government (federal, state, or local) starts to require the installation and transmission of these devise.  That triggers all sorts of massive 4th Amendment issues. See later in the article all the issues 4th Amendment issues with counter drone technology.

The next category is where things get legally complicated fast.

Defenders:

These types of anti-drone countermeasures may include but are not limited to:

  • Drone radio signal jammers (jamming GPS or command and control)
  • Spoofers (to manipulate GPS signals or overpower them so the drone incorrectly thinks it is somewhere else and it’s autopilot tries to correct by flying in the direction you want)
  • Hackers
  • Sonic resonators – Fox News has an article on how this technology could counter drones.
  • Destroyers
  • 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 Used as an Anti-Drone Weapon

A word on netting. It might or might NOT be effective depending on your goals. If you are trying to capture a drone, sure. If you are trying to prevent delivery by drone, the object being delivered can make it’s way through a net if it is small enough.

How Certain Counter Drone Technologies Can Harm Others

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.”

The FAA ended up doing some studies and on July 19, 2018 issued a follow up letter to the October 26, 2016 letter which discussed the findings of the counter drone study they did at some airports.

Through these efforts, we learned the airport environment presents a number of unique challenges to the use of technologies available for civil use. The low technical readiness of the systems, combined with a multitude of other factors, such as geography, interference, location of majority of reported UAS sightings, and cost of deployment and operation, demonstrate this technology is not ready for use in domestic civil airport environments. In particular, some of the FAA’s significant findings and recommendations include-

  • Airport environments had numerous sources of potential interference–more than anticipated. High radio spectrum congestion in these environments made detection more difficult and, in some instances, not possible.

  • Certain aircraft operational states ( e.g., hovering) and the degree off light autonomy also limit detection. 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 sUAS.

  • UAS detection systems should be developed so they do not adversely impact or interfere with safe airport operations, air traffic control and other air navigation services, or the safe and efficient operation of the NAS. They should also work with existing airport systems, processes, procedures, and technologies without modification of current infrastructure.

  • The primary factor in determining the feasibility of installing a permanent system at anairport is the number of sensors needed to achieve the desired airspace coverage. Becausethe coverage volume depends on the unique characteristics and requirements of each airportand the type of system, the number of sensors will vary. The coverage distance for many types of detection technologies also constrains the efficacy of such systems in identifying thelocations of UAS.

  • Deploying assets in an environment owned by many entities could also make UAS detectionsystems a challenging solution to acquire and deploy. Overall, costs are prohibitive wherehigher levels of redundant coverage are required. An additional and critical component ofthis finding is that technology rapidly becomes obsolete upon installation as UAS technologyis rapidly changing.

Additionally, the American Radio Relay League sent the FCC a warning letter about video transmitters being sold that operate between 1010 and 1280 MHz, and transmit with power as much as 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.

Industries Wanting to Use Counter Drone Technology

There are many industries that are very interested in using this counter drone technology:

The U.S. Nuclear Regulatory Commission looked into drones regarding how they could be a threat to nuclear powerplants and determined that ” there are no risk-significant vulnerabilities at nuclear power plants that could be exploited by adversarial use of currently available commercial drones.”

DHS Science & Technology branch did a “webinar focused on the areas DHS S&T is pursuing against this [drone] threat by developing enhanced technologies and methods that allow for the detection, tracking, identification, and mitigation of UAS under varied terrains and environmental conditions.

Counter UAS Specific Laws That Have Been Created

The U.S. Congress has started seeing the need for counter drone technologies 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 anti-drone detection technology at airports.

In December 2016, Congress passed the National Defense Authorization Act of 2017 (“NDAA”) which created Title 10 and Title 50 of the United States Code brand new sections to allow for the use of counter drone technologies.

In December 2017, the NDAA of 2018 amended Section 130i in Title 10 to expand the usage of anti-drone technologies.

In October 2018, the FAA Reauthorization Act of 2018 was passed which gave the Secretary of the Department of Homeland Security, the Department of Justice, and the United States Coast Guard counter UAS authority. It directed the FAA to initiate a review of FAA counter drone standards and coordination and also directed the Department of Transportation to consult with the Department of Defense to streamline the deployment of anti-drone technology. On March 30, 2023, the FAA published the charter for the Aviation Rulemaking Committee (ARC) named the “Unmanned Aircraft Systems (UAS) Detection and Mitigation Systems Aviation Rulemaking Committee” also known as the counter UAS ARC or the Section 383 ARC.

On December 2020, the Consolidated Appropriations Act included tacked on the “DHS Countering Unmanned Aircraft Systems Coordinator Act” which provides for the creation of a CUAS coordinator in DHS to be located at 6 U.S.C. Section 321.

DOT IG’s Office reported the FAA is behind.

International Counter UAS Efforts

United Nations Security Council resolution 2370 from 2017 says,

“Strongly condemning the continued flow of weapons, including small arms and light weapons, military equipment, unmanned aircraft systems (UASs) and their components, and improvised explosive device (IED) components to and between ISIL (also known as Da’esh), Al-Qaida, their affiliates, and associated groups, illegal armed groups and criminals, and encouraging Member States to prevent and disrupt procurement networks for such weapons, systems and components between ISIL (also known as Da’esh), Al-Qaida and associated individuals, groups, undertakings and entities,”

On May 20, 2022, the United Nations Counter-Terrorism Centre (UNCCT) of the United Nations Office of Counter-Terrorism (UNOCT) provided a training workshop on counter-terrorism and unmanned aircraft systems digital forensics.

Counter Drone Technology Policy Documents from Federal Agencies

Federal Aviation Administration Counter Drone Documents

1/9/2024.  The FAA Aviation Rulemaking Committee (ARC) on Unmanned Aircraft Detection and Mitigation Systems published its final report.

3/26/2019, The FAA put together a nice PDF on technical considerations for anti drone systems near airports.

5/7/2019, The FAA also put together some FAQs for counter drone systems near airports.

12/31/2020, FAA notice to Air Traffic Organization went into effect regarding reporting suspicious drone activity.

FAA JO 7210.3CC change 2 dated 5-19-2022 had a lot of information in it.

2−1−34. USE OF UAS DETECTION SYSTEMS

Airport owners/operators or local enforcement may contact ATC facilities to coordinate their acquisition, testing, and operational use of UAS detection systems. These systems and how they are used may have implications for FAA regulations for airports; potentially affect ATC and other Air Navigation Services systems (e.g., RF interference with radars);
and/or trigger airport responses (e.g., closing runways), which must be coordinated with ATC.

a. Requests by airport authorities for ATC facility cooperation/authorization in the acquisition, testing, or use of UAS detection systems will be referred to the appropriate FAA Airports District Office (ADO). The ADO will initiate internal FAA coordination, including reviews by the responsible ATO offices and facilities.

b. ATC facilities must not enter into any verbal or written agreement with a commercial vendor or an airport authority regarding UAS detection capabilities without prior coordination and approval from HQ−AJT−0. NOTE−

1. UAS detection systems do not include the interdiction components that characterize UAS mitigation technologies, also referred to as Counter Unmanned Aircraft System (C−UAS) technologies. Only select Federal Departments and Agencies have the legal authority to use C−UAS systems in the NAS. The FAA does not support the use of this technology by other entities without this legal authorization.

2. The FAA does not advocate the use of UAS detection in the airport environment until appropriate policy and procedures are developed.

2−1−35. USE OF COUNTER UNMANNED AIRCRAFT SYSTEMS (C−UAS)

Select Departments and Agencies, which have been legally authorized to use this technology, are operationally using Counter Unmanned Aircraft System systems (C−UAS) in the NAS to protect certain facilities and assets. C−UAS systems are capable of disabling, disrupting, or seizing control of a suspicious UAS, and may integrate or be linked to UAS detection capabilities. These Departments andAgencies are required to coordinate with the FAA to assess and mitigate risks to the NAS posed by these C−UAS systems. These systems and their deployment may affect ATC and other Air Navigation Services systems (e.g., RF interference with radars); which could impact other air traffic in the vicinity including legitimate, compliant UAS flights. Additionally, the C−UAS may involve the response and deployment of ground/airborne operational security assets, which must be coordinated with ATC.

a. The Joint Air Traffic Operations Command (JATOC) Air Traffic Security Coordinator (ATSC) team, which manages the Domestic Events Network (DEN), must notify affected ATC facilities when C−UAS systems are activated.

NOTE− Only select Federal Departments/Agencies have been legally authorized to utilize C−UAS to cover certain facilities and assets, and with coordination with the FAA to address risks to the NAS. Risk mitigation for the NAS typically includes notification to potentially affected ATC facilities.

b. The DEN must alert all ATC facilities affected by C−UAS deployment and JATOC National Operations Control Center (NOCC) of any possible operational impacts.

1. The alerts will focus on real−time reporting regarding possible operational impacts of C−UAS activities providing the affected facilities with heightened awareness to potential flight and equipment anomalies; and will allow the facilities to take actions needed to sustain safe operations.

2. The alerts must be made via landline communications and must not be broadcast over radios, shout lines, or direct dial lines to air traffic controllers on position.

3. The affected ATC facilities must not discuss C−UAS operations with any outside entity

March 30, 2023, FAA published the charter creating the Counter UAS aviation rulemaking committee. Here are some notable quotes:

  • “ARC will provide a forum for the U.S. aviation community and UAS security stakeholders to discuss, and provide recommendations to the FAA for, a NAS-wide plan for certification, permitting, authorizing, or allowing of the deployment of technologies or systems for the detection and mitigation of UAS, without causing adverse impact to the NAS. The 383 ARC will identify opportunities for new rulemaking as well as internal policy and guidance development to ensure adequate FAA oversight over the use of UAS detection and mitigation systems.”
  • “Therefore, the ARC is tasked with developing recommendations concerning the use of this technology anywhere in the United States and is not limited to recommendations involving the airport environment.”
  • “ARC should not develop recommendations specific to any user of this technology currently authorized by Congress or that may be authorized by Congress in the future. Rather, the FAA seeks recommendations necessary to ensure the safe integration of this technology into the NAS by any potentially authorized user. Moreover, the ARC is not being tasked with considering the potential likelihood of, or recommendations for, any changes in laws by Congress concerning the use of UAS detection and mitigation systems. Similarly, the ARC is not tasked with addressing any potential or recommended expansion of FAA authorities by Congress related to the use of UAS detection or mitigation technologies, nor will it be tasked with addressing the potential expansion of authority by Congress for any other entity to engage in UAS detection and/or mitigation”
  • “Finally, because § 44810(b)(4) prohibits FAA from delegating its authority to other Federal, State, local, territorial, or tribal agencies, or an airport sponsor, the ARC is not tasked with considering whether FAA authority in this area should be delegated.”

Department of Justice Counter Drone Documents

4/13/2020, the Attorney General for the United States issued a memorandum outlining the implementation of the counter drone technology within the agencies of the Department of Justice. I did a webinar with Fortem Technologies on this memo and you can watch the video here.

Federal Communications Commission

8/17/2020, FCC published on their website an advisory issued jointly by FAA, DOJ, DHS, and FCC on the use of counter drone technologies. One great nugget of a quote was this, 49 U.S.C. § 40103 establishes a public right of transit through navigable airspace and vests the FAA with authority to ensure the safety of aircraft and the efficient use of airspace. This includes ensuring that compliant aircraft (including drones) may move through the airspace without improper interference.” Before a state or local government entity creates a law or tries to enforce a counter drone law against unmanned aircraft, they need to realize that the operation of a drone is a federal right.

Department of Transportation

On October 14, 2020, the DOT Office of Inspector General initiated an audit on FAA’s oversight of Counter-Unmanned Aircraft Systems.

Laws Preventing Anti-Drone Technology Usage

Here is the problem, there are a bunch of laws already in place which currently prohibit counter drone technology from being used or create liability when they are used.  We have the Safety Act which can limit some counter drone technology implementation liability, but it does NOT solve the situation. Yes, there are some possibilities you could have with state and local law enforcement working with the Department of Homeland Security but that is completely outside the scope of this article. This article is highlighting the problems, not explaining all the solutions.

The next subsections are problems 1 through 4.

Communications Act of 1934

There are three sections that are problematic to the implementation of anti-drone systems which use radio frequency jamming or spoofing:

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 302a(b) – Prohibits the manufacturing, 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.”

Just on an interesting follow up point, all sorts of things operate on the frequencies you are jamming. Let’s say you turn your jammer on, how are you going to deal with legal liability for any damage you have done? Just let this sink in….“The GPS jamming that caused 46 drones to plummet during a display over Victoria Harbour during the weekend caused at least HK$1 million (US$127,500) in damage, according to a senior official from the Hong Kong Tourism Board.”

Here is another example. 48 drones crashed which was around $98,674 worth of drones.” The administration suspects that the interference was caused by other drones flying in the area, Liao said. It was also possible that some people were using other radio-frequency devices near the venue, which caused interference, he said. . . .Others said that the interference could be deliberately produced by drone operators in protest against the government’s new regulations, which are scheduled to take effect on March 31.”

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.

 The United States Criminal Code 

Laws Applicable to the Detection or Detection Equipment

18 U.S.C. Sections 3121-3127 (Pen/Trap Statute) applies. The Advisory on the Application of Federal Laws to the Acquisition and Use of Technology to Detect and Mitigate Unmanned Aircraft Systems summarized:

“The Pen/Trap Statute, 18 U.S.C. §§ 3121-3127, criminalizes the “use” or “installation” of a “device” or “process” that “records,” “decodes,” or “captures” non-content4 dialing, routing, addressing, or signaling (“DRAS”) information. DRAS information is non-content information used to transmit or process communications; depending on the system, this could include device serial numbers, cell site information, media access control (MAC) addresses, the international mobile equipment identity (IMEI), or the international mobile subscriber identity (IMSI). Use or installation of a pen register or trap and trace device is prohibited, unless conducted pursuant to a court order or when a statutory exception applies.”

18 U.S.C. Section  2511  (Wiretap Act) 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 USC 2511(2)(g)(i) provides an exception if the electronic comunication is “readily accessible to the general public” which is defined in 18 USC 25101(16)(A) as “with respect to a radio communication, that such communication is not— (A) scrambled or encrypted; (B) transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication; (C) carried on a subcarrier or other signal subsidiary to a radio transmission; (D) transmitted over a communication system provided by a common carrier, unless the communication is a tone only paging system communication; or (E) transmitted on frequencies allocated under part 25, subpart D, E, or F of part 74, or part 94 of the Rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio;”

Many drone command and control links use encryption. Others do not.

18 U.S.C. 2512.  The Advisory on the Application of Federal Laws to the Acquisition and Use of Technology to Detect and Mitigate Unmanned Aircraft Systems summarized:

“[P]rohibits the manufacture, assembly, possession, sale, advertisement, and distribution of devices that are “primarily useful for the surreptitious interception of wire, oral, or electronic communications.”9 Section 2513 provides that any electronic, mechanical, or other device used, sent, carried, manufactured, assembled, possessed, sold, or advertised in violation of § 2512 may be seized and forfeited to the United States.”

Laws Applicable to Defeating the Drone

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.

In DOT IG report for I17A0010500 it said,

This investigation was opened based upon a referral from the Federal Aviation Administration (FAA) Joint Security and Hazardous Materials Safety Office (AHC). AHC received information of an incident investigated by the [REDACTED] Police Department ( [REDACTED]  Indiana, who responded to a report of a drone, also known as an Unmanned Aircraft System (UAS), shot down while in flight on [REDACTED] incident/investigation reports identified [REDACTED] as the owner of the UAS and [REDACTED] as the individual who shot the UAS down. AHC conducted a preliminary inquiry of [REDACTED] for the violation of 18 USC 32 – Destruction of Aircraft or Aircraft Facilities. . . . On [REDACTED] used a shotgun to destroy a UAS owned by [REDACTED] Indiana resident and neighbor [REDACTED]. On [REDACTED] Indiana, was interviewed to obtain information related to the [REDACTED] investigation. provided both [REDACTED] and [REDACTED] video statements, which [REDACTED] recorded on [REDACTED] and photos of the destroyed UAS (Attachment 1). On February 3, 2017, the case was presented to the Northern District of Indiana, United States Attorney’s Office (USAO) for prosecution. The USAO declined to prosecute the case. On [REDACTED] SA Todd [REDACTED] referred the case to the [REDACTED] ( [REDACTED] IN, for criminal prosecution. The [REDACTED] accepted the case.
On [REDACTED] was charged with Criminal Mischief in [REDACTED] Indiana, for shooting down a UAS, resulting in at least $750.00 loss to the owner (Attachment 2).
On [REDACTED] the State of Indiana, by Deputy Prosecuting Attorney, moved to dismiss the Criminal Mischief case, without prejudice, against [REDACTED] in [REDACTED] Indiana, for shooting down a UAS. In support of the motion, the State of Indiana informed the Court that $ in restitution was paid to [REDACTED] by[REDACTED] (Attachment 3). It is recommended this case be closed.

49 U.S.C. Section 46502. The Advisory on the Application of Federal Laws to the Acquisition and Use of Technology to Detect and Mitigate Unmanned Aircraft Systems summarized:

“46502, criminalizes the act of seizing or exercising control of an “aircraft” with “wrongful intent.” An intent to seize or exercise control of an aircraft without the legal authorization to do so could involve wrongful intent.”

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.

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.

18 U.S.C. Section 39A Aiming a laser pointer at an aircraft. 

(a)Offense.— Whoever knowingly aims the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States, or at the flight path of such an aircraft, shall be fined under this title or imprisoned not more than 5 years, or both.
(b)Laser Pointer Defined.— As used in this section, the term “laser pointer” means any device designed or used to amplify electromagnetic radiation by stimulated emission that emits a beam designed to be used by the operator as a pointer or highlighter to indicate, mark, or identify a specific position, place, item, or object.
(c)Exceptions.—This section does not prohibit aiming a beam of a laser pointer at an aircraft, or the flight path of such an aircraft, by—

(1)an authorized individual in the conduct of research and development or flight test operations conducted by an aircraft manufacturer, the Federal Aviation Administration, or any other person authorized by the Federal Aviation Administration to conduct such research and development or flight test operations;
(2)members or elements of the Department of Defense or Department of Homeland Security acting in an official capacity for the purpose of research, development, operations, testing, or training; or
(3)by an individual using a laser emergency signaling device to send an emergency distress signal.

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.

Investigations Into Counter Drone Companies

So has anyone been investigated?

Yes.

The Federal Communications Commission has done at least 8 investigations. 7 into companies and 1 into a person. The letters and attachments all appear to be of a template. Here is what the template looks like:

Letter

Dear XXXX

[Redacted Paragraph]

The Commission is responsible for regulating radio communications and the marketing and  operation of radiofrequency devices within the United States. We direct XXXX, pursuant to  Sections 4(i), 4(j), and 403 of the Communications Act,3 to provide the information and documents  requested in the attachment to this letter, within thirty (30) calendar days after the date of this Letter of  Inquiry (“LOI”).  

This LOI constitutes an order of the Commission to produce the documents and information  requested herein.4 To knowingly and willfully make any false statement or conceal any material fact in  reply to this Inquiry is punishable by fine or imprisonment.5 Failure to respond appropriately to this  LOI constitutes a violation of the Communications Act and our rules.6

The Attachment to this letter includes filing requirements and instructions for your response and  definitions for certain terms in this LOI. Requests for confidential treatment or claims of attorney-client  privilege or attorney work product must strictly meet the requirements stated in the attached instructions.

If you have any questions regarding this matter, please contact REDACTED.

Lisa Fowlkes
Chief
Public Safety & Homeland Security Bureau
Federal Communications Commission

 

1 Redacted
2 Redacted
3 47 U.S.C. §§ 154(i), 154(j), 403.
4 See 47 U.S.C. § 155(c)(3).
5 See 18 U.S.C. § 1001; see also 47 CFR § 1.17.
6 See 47 U.S.C. 503(b)(1)(B); see also Net One Int’l, Net One, LLC, Farrahtel Int’l, LLC, Forfeiture Order, 29 FCC Rcd. 264, 267, para. 9 (EB 2014) (imposing a $25,000 penalty for failure to respond to LOI); Conexions, LLC d/b/a Conexion Wireless, Notice of Apparent Liability for Forfeiture and Order, 28 FCC Rcd 15318, 15325, para. 22 (2013) (proposing a $300,000 forfeiture for failure to provide timely and complete responses to an LOI); Technical Commc’n Network, LLC, Notice of Apparent Liability for Forfeiture and Order, 28 FCC Rcd 1018, 1020, para. 8 (EB 2013) (proposing a $25,000 forfeiture for failure to provide a complete response to an LOI); SBC Commc’ns, Inc., Forfeiture Order, 17 FCC Red 7589, 7600, para 28 (2002) (imposing $100,000 penalty for failing to submit a sworn written response).

Attachment

The attachments were heavily redacted. Many paragraphs were entirely redacted because the FCC thought we could look at them to determine how they were doing their investigating.

However, we did manage to find some information. We redacted some of the information and cleaned it up so it is more readable:

State corporations gross revenues as indicated on the corporations most recent tax return or financial statement.

3.  Identify the FCC registration number (FRN) or the FRN of corporation and any parent and affiliate companies of the corporation.

4. Identify, by trade name and C-UAS number, each model of C-UAS RF device marketed by corporation that is available for sale or lease within the United States. For each C-UAS that is an intentional radiator, state whether the C-UAS has been tested and authorized in accordance with the FCCs equipment certification procedures.8 Provide the date(s) of testing and the FCC Id number. If any C-UAS that is an intentional radiator was not tested to meet the FCC’s certification procedures, explain what other criteria, if any, were used to test its radiated and conducted limits. State the location and under what conditions (for example, open air, indoors, anechoic chamber) the C-UAS was tested during development.

Then there were many more redacted paragraphs until we arrive at the filing requirement section. I tried to clean up the text.  You’ll notice a lot of footnotes are missing. The documents all appeared to be from a template.  BTW, the numbers like (b)(7)(A) are redaction grounds cited by FCC.

Affidavit Requirement. We direct (b) (7)(A), (b) (7)(E) to support its responses with an affidavit or  (b) (7)(A), (b) (7)(E) declaration under penalty of perjury, signed and dated by an authorized officer of  (b) (7)(A), (b) (7)  with personal knowledge of the representations provided in response. The affidavit or  (E)  declaration must verify the truth and accuracy of the information therein, state that all information  (b) (7)(A), (b) (7)  requested by this letter that is in possession, custody, control, or knowledge has been  (E)  produced, and state that any and all documents provided in its responses are true and accurate copies of  the original documents. In addition to such general affidavit or declaration of the authorized officer of   (b) (7)(A), (b) (7)  described above, if such officer (or any other affiant or declarant) is relying on the   (E)(b) (7)  personal knowledge of any other individual rather than his or her own knowledge, and if multiple  (b) (7)(A), (A) 

(b) (7)(A), (b) (7)  (b) (7)(E)  employees contribute to the response, shall provide separate affidavits or  (E)  declarations of each such individual with personal knowledge that identify clearly to which responses the  affiant or declarant with such personal knowledge is attesting. All such declarations provided must  comply with Section 1.16 of the Rules,13 and be substantially in the form set forth therein. Failure to  support your responses with a sworn affidavit could subject you to forfeiture.14  

Delivery Requirements. (b) (7)(A), (b) (7)(E) shall send its response by hand or messenger delivery, by commercial overnight courier, or by First-Class or overnight U.S. Postal Service mail. 

If sent by messenger or hand delivery, (b) (7)(A), (b) (7)(E)should direct its response to the attention   (b) (6), (b) (7)(E)  of Policy and Licensing Division, Public Safety & Homeland Security Bureau, Federal  (C)  Communications Commission, 445 12th Street, SW, Room [#], Washington, DC 20554.15  

If sent by commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail), the response should be sent to the attention of (b) (7)(A), (b) (7)(E), Policy and Licensing Division, Public Safety & Homeland Security Bureau, Federal Communications Commission, 9050 Junction Drive,  Annapolis Junction, Maryland. 

If sent by first-class, Express, or Priority Mail, the response should be sent to (b) (7)(A), (b) (7)(E),  Policy and Licensing Division, Public Safety & Homeland Security Bureau, Federal Communications  (b) (6),   Commission, 445 12th Street, SW, Room(b) (7)(A), (b) (7)(E), Washington, DC 20554.  

Electronic Copy. (b)(7)(b)(7)(A), (b) (7)(E) shall also transmit a copy of the response via email to (b) (6), (b) (7)(C)  The electronic copy shall be produced in a format that allows the Commission to  access and use it, together with instructions and all other materials necessary to use or interpret the data,  including record layouts, data dictionaries, and a description of the data’s source. 

Instructions 

Request for Confidential Treatment. In addition to providing the requested information and  documents, any request for confidentiality of certain information or documents must strictly comply with  the requirements of 47 CFR § 0.459, including a statement of the reasons for withholding the materials  from inspection. The request must include a schedule of the information or documents for which  confidentiality is requested that states, individually as to each such item, the information required by  Section 0.459(b) of the Rules including, but not limited to, identifying the specific information for which  confidential treatment is sought; explaining the degree to which the information is commercial or  financial, or contains a trade secret or is privileged; and explaining how disclosure of the information  could result in substantial competitive harm.16 Accordingly, a “blanket” request for confidentiality or a  casual request, including simply stamping pages “confidential,” will not be considered a proper request  for confidentiality, and those materials will not be treated as confidential.17 

Claims of Privilege. If (b) (7)(A), (b) (7)(E) withholds any information or documents under claim of privilege, it shall submit, together with any claim of privilege, a schedule of the items withheld that states,  individually as to each such item: the numbered Inquiry to which each item responds and the type, title,  specific subject matter and date of the item; the names, addresses, positions, and organizations of all  authors and recipients of the item; and the specific grounds for claiming that the item is privileged.  

Format of Responses. The response must be organized in the same manner as the questions  asked, i.e., the response to Inquiry 1 should be labeled as responsive to Inquiry 1.  

Method of Producing Documents. (b) (7)(A), (b) (7)(E) shall submit each requested document in its  entirety, even if only a portion of that document is responsive to an Inquiry made herein, including all  appendices, tables, or other attachments, and all other documents referred to in the document or  (b) (7)(A), (b) (7)(E) attachments.(b) (7)(A), (b) (7)(E)  shall not edit, cut, expunge, or otherwise take any action to modify any  (b) (7)(A), (b) (7)(E) document submitted in response to this LOI. In addition to any document submits in (b) (7)(A), (b) (7)(E) response to any Inquiry, shall also submit all written materials necessary to understand any document responsive to these inquiries.  

Identification of Documents. For each document or statement submitted in response to the  inquiries stated in the cover letter, indicate, by number, to which Inquiry it is responsive and identify the  persons from whose files the document was retrieved. If any document is not dated, state the date on  which it was prepared. If any document does not identify its authors or recipients, state, if known, the (b) (7)(A), (b) (7)(E)  names of the authors or recipients. must identify with reasonable specificity all documents provided in response to these inquiries.  

Documents Already Provided. If a document responsive to any Inquiry made herein has already  been provided to the Public Safety and Homeland Security Bureau during this or any other investigation,  identify each such document, when and how it was produced to the Bureau, and specify the Bates-number range for the document.  

[Redacted]

13 47 CFR § 1.16. 

14 SBC Commc’ns, Inc., 17 FCC Rcd at 7600, para. 28 (2002) (imposing $100,000 penalty for failing to submit a  sworn written response). 

15 FCC Announces Change in Filing Locations for Paper Documents, Public Notice, 24 FCC Rcd 14312, 14315  (2009). Originals and any copies of the response submitted via hand delivery or messenger must be held together  with rubber bands or fasteners and must be submitted without envelopes. Id.

16 See 47 CFR § 0.459(b).  

17 See 47 CFR § 0.459(c)

Counter Drone Systems and the 4th Amendment

The Fourth Amendment to the United States Constitution says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis mine).

Notice that the 4th protects people (wherever they are), houses (including front, side, and backyard), and effects (such as their cell phone or their drone). This is where things start getting problematic depending on what you are tracking and where that thing is located.

Counter Drone Technology Tracking People or Drones In and Around Homes

Tracking people and drones in homes and around the yards present unique problems as the home is a highly protected area. The United States Supreme Court case law has held that warrantless tracking of a device in a home was a 4th Amendment violation. There has also been another case ruling that using a thermal imaging device on a home was a 4th Amendment violation. The type of technology being used is very case-by-case here.

Counter Drone Technology Tracking People or Drones Outside of Homes

This area also has all sorts of twists and turns to it. There are all sorts of cases saying it is not a violation in certain circumstances and cases saying it is a violation in other situations. The best discussion on point is from the brief I co-authored in the RaceDayQuads case challenging the FAA’s remote ID regulations. There are many aspects to this: cost of the technology, how far out the technology detects, how well it evades judicial safeguards, how much of the person’s entire movements it tracks over time, etc.

Searching a Phone or a Drone (Computer)

Any type of technology that get’s into a person’s phone or drone computer has issues as well. Remember a drone or phone used as a ground controller would be considered “effects” for 4th Amendment purposes.

By Regulation, not by Warrant

It’s one thing for a person to broadcast voluntarily and government to track them. It is entirely a different thing to force by regulating the broadcasting. If an agency starts trying to force broadcast (like remote identification), this can get into tracking issues that are potentially a 4th Amendment violation. This is HIGHLY fact-intensive and very case-by-case but I’m speaking about this broadly. The idea is the agency cannot require by regulation to get data that they wouldn’t have been able to obtain but by warrant. You cannot create a regulation to get around the 4th Amendment warrant requirement.  Justice Alito’s concurring opinion in the US v Jones case from 2012 foresaw the issue when he was discussing the different types of reasoning on ruling on 4th Amendment violations:

By contrast, if long-term monitoring can be accomplished without committing a technical trespass—suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car—the Court’s theory would provide no protection.

The 4th Amendment issues are presently being litigated heavily in the RaceDayQuads case. Unfortunately, the court did not really pick up on this important point in its ruling.

Other Points

There are all sorts of points that can be made that make some of these situations completely permissible under the 4th Amendment.

All sorts of other points come into play here such as:

  • Whether the person volunteered the broadcast or consented to the tracking,
  • Whether the person or drone is in a publicly viewable area,
  • Whether the person has a subjective belief they have an expectation of privacy,
  • Whether the person has a diminished expectation of privacy (a guy who is on parole after being convicted for dropping drugs into a prison from a drone),
  • Whether the yard has a fence around it preventing people from seeing inside,
  • Whether the person or home has a massive amount of property (hundreds of acres) on a farm preventing people from seeing the front yard,
  • Steps were taken by the person to maintain privacy,
  • The drone’s size and difficulty in being seen, etc.

There are also 4th Amendment “searches” that are still considered permissible under very few and narrowly tailored situations that are highly case-by-case specific.  In preparing for the RaceDayQuads case, I read many of these cases and they are extremely fact dependent and very confusing/complicated.  Some of them I had to read multiple times to understand as they do not read easily like other 4th Amendment cases. Unfortunately, in the Remote ID litigation we did, we did not get into this area so this issue has not been fully ventilated publicly.

4th Amendment Argument from the RaceDayQuads Opening Brief

I have copy-pasted our 4th Amendment argument from our opening brief. Keep in mind the FAA responded to it and we also responded back. The court did NOT rule in favor of RaceDayQuads in the case and failed to answer certain issues (discussed later).

II. UNLIMITED REMOTE ID VIOLATES FOURTH AMENDMENT

FAA has stated repeatedly in the final rule and elsewhere that Remote ID is like a digital license plate in the sky. It is not. The registration number on the drone is analogous to a license plate while Remote ID is a GPS tracking device that broadcasts not just a registration number but GPS coordinates of the drone and controller that can be monitored and logged by FAA, law enforcement and potentially others. The sheer overbreadth of this rulemaking destroys any analogy to a license plate on the road. The final rule is analogous to requiring all vehicles, including go-peds and lawn mowers on private property, to pay for and install GPS tracking beacons for law enforcement to monitor and archive.

To be clear, Remote ID for recreational drones is very much appropriate when tied to legitimate safety and security concerns. But the final rule goes beyond FAA having the data for safety purposes; it extends the collection and dissemination of that data beyond the limits of the law and the reasonable privacy expectations of the public. FAA and law enforcement can track everyone, everywhere, all the time, without any time or location constraints. Such overreach into private property and reasonable expectations of privacy cannot survive Constitutional review.

A. The Rule Infringes Upon Reasonable Expectations in Privacy

The Supreme Court has made clear that use of a GPS beacon to track private property is a search within the meaning of the Fourth Amendment. United States v. Jones, 565 U.S. 400 (2012). Tracking cell phone location without a warrant is likewise an invasion of an individual’s expectation of privacy in his physical location. See Carpenter v. United States, 138 S.Ct. 2206, (2018). Similarly, in Riley v. California, the Supreme Court ruled that police cannot search the contents of a cell phone without a warrant, specifically discussing the location history stored inside the phone as personal information deserving protection from unwarranted disclosure. 573 U.S. 373, 396(2014).

FAA’s rule here intends that Remote ID GPS location data will be real time monitored by federal, state, and local law enforcement capable of receiving Wifi or Bluetooth signals. JA. 2 (“promotes compliance by operators of unmanned aircraft by providing UAS specific data . . . to provide airspace awareness to . . . law enforcement entities[.]”), JA 38 (“FAA envisioned that Remote Identification would be broadcast using spectrum similar to that used by Wi-Fi and Bluetooth devices. . . . The purpose of this requirement is to ensure that the public has the capability, using . . . cellular phones, smart devices, tablet computers, or laptop computers, to receive these broadcast messages.“). For standard ID, it includes the location of drones and the even more precise location of the drone operator, oftentimes determined by cell phone location. JA 118 at 89.305(b)-(c), 89.310(h). This information can easily be logged allowing for historical location data to be searched by law enforcement. FAA is conducting a search without warrant, probable cause, or even reasonable suspicion. Such intrusion into the sanctity of the dwelling and the expectation of privacy in cell phone and GPS location data cannot be so easily permitted by regulation.

1. Warrantless Search of Curtilage

The final rule’s requirement that recreational drones broadcast the drone’s and controller’s GPS coordinates while being operated within the curtilage of private property constitutes an unconstitutional search. “The ‘very core” of [the Fourth Amendment’s] guarantee is ‘the right of a man to retreat into his own home and there be free from unreasonable government intrusion.’” Caniglia v. Strom, 141 S.Ct. 1596, 1599 (2021) (quoting Florida v. Jardines, 569 U.S. 1, 6 (2013)); see also Lange v. California, 141 S.Ct. 2011 (2021) (quoting the same language in holding pursuit of suspected misdemeanant does not justify warrantless entry into a home, including the garage). The Supreme Court has made it exceedingly clear that the curtilage is afforded the same 4th Amendment protections as a home. See Collins v Virginia, 138 S.Ct. 1663 (2018). The Court has likewise made clear that monitoring a tracking device in private property to “obtain information that [the government] could not have obtained by observation from outside the curtilage of the house” presents a serious threat to privacy interests in the home that requires Fourth Amendment oversight. United States v. Karo, 468 U.S. 705, 715 (1984). Remote ID mandates broadcasting a GPS tracking device for government monitoring in all outdoor locations, including within the curtilage of private homes. See JA 57. FAA is requiring drone users flying drones below the tree line in their backyards to broadcast their location while doing so. FAA is demanding access into the very curtilage of private property for law enforcement to monitor and store the exact location details of drones and drone operators who are at their homes. FAA is reaching into the “sanctity of a person’s living space,” the “first among equals” under the Fourth Amendment, “the archetype of the privacy protection secured by the Fourth Amendment,” the home. Lange, 141 S.Ct at *11-12 (internal citations omitted). FAA’s regulatory bypass of the warrant requirement infringes upon a core principle of the Fourth Amendment. Exceptions to the warrant requirement “are ‘jealously and carefully drawn,’ in keeping with the ‘centuries-old principle’ that the ‘home is entitled to special protection.’” Lange, 141 S.Ct. at *11 (quoting Georgia v. Randolph, 547 U.S. 103, 109 (2006)). Thus, the Supreme Court has made clear that a warrant is required for government intrusion into the home and areas immediately surrounding it, even when there is clear evidence that the person has committed a misdemeanor, or to seize guns as a matter of “community caretaking.” See Lange, 141 S.Ct. 2011; Caniglia, 141 S.Ct. 1596. Surely operating a drone is not sufficiently
more concerning to justify the grave intrusion here.

2. Infringes upon Privacy Interests of Small Drone Operators

Small drone operators often have a reasonable expectation of privacy when operating even beyond their own yards, which is likewise infringed upon by the warrantless search mandates of the final rule. As the Supreme Court has made clear, “the Fourth Amendment protects people, not places” and “what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. U.S., 389 U.S. 347, 351 (1967). Many FPV racers fly in privately owned fields and clubs that are not accessible to the general public. But even in public areas, due to the small size of drones, they are out of sight from public view much of the time, maintaining the operator’s expectation of privacy. Remote ID is the equivalent of the FCC requiring phone booth doors to never be closed, in the interest of safety and security, and the user to always shout their name loud and clear every time they speak. This regulation, by operation, obliterates any justified expectation of privacy anywhere outside of the curtilage.

  1. Infringes upon Privacy Expectation in the Whole of People’s Movements Even if, arguendo, there is no privacy expectation for the time when a drone is flying in public, there remains an expectation of privacy in the whole of one’s movements over time which are clearly violated by the requirements of the final rule. Cf. Leaders of a Beautiful Struggle v. Baltimore Police Dep’t, No. 20-1495, 2021 U.S.App. LEXIS 18868, at * 4-28 (4th Cir. June 24, 2021) (accessing data from aerial surveillance program is a search in violation of the Fourth Amendment because it enables police to deduce from the whole of individuals’ movements). As explained by this Court in United States. v. Maynard, tracking an individual’s movements – even on public thoroughfares – over the course of a month is problematic because unlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one’s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more— sometimes a great deal more—than does the sum of its parts. 615 F.3d 544, 558 (D.C. Cir. 2010), aff’d, U.S. v. Jones, 565 U.S. 400 (2012). Remote ID uses unique identifiers to link the pilot with the drone and requires it to be broadcasted all the time. JA 116-118. Like the cell-site location information (CSLI) in Carpenter and the GPS-data in Jones, Remote ID “tracks every movement” to enable a “detailed, encyclopedic record.” Carpenter, 138 S.Ct. at 2215-19. This information is designed to be extremely easy to access using non-proprietary broadcast specifications and radio frequencies compatible with personal wireless devices (e.g. Wifi) and to broadcast radio waves great distances. JA 118-119 at 89.310(g)(2), 89.320(g (2). Standard ID and BMID are designed to “maximize the range at which the broadcast can be received, while complying with” Federal Communication Commission (FCC) Regulations. Id. Utilizing the 1 watt of output power provided for in FCC regulations, 47 CFR 15.247(b)(1), a Remote ID system at +30dBm (1 watt) on 2.4 gHZ would transmit identification information more than a mile. In contrast, most small FPV racer drones are out of sight within hundreds of feet. Using Remote ID data for law enforcement purposes raises serious constitutional concerns because “whoever the suspect turns out to be,” they have “effectively been tailed” for an unknown period of time;10 Remote ID is akin to “attach[ing] an ankle monitor” to every person operating a drone. See Carpenter, 138 S.Ct at 2218; Leaders of a Beautiful Struggle at *20. The rule clearly infringes upon the privacy interest of small recreational drones by broadcasting all of their movements to such great distances, where they would never otherwise be exposed to the public. 10 The final rule does not provide an indication as to how long Remote ID data may be stored or accessible for search.4. The Fourth Amendment is Violated by Unlimited Time Length of Tracking

As with data accumulated in cell phone tracking, the precise data at issue here provides “tireless and absolute surveillance” of all individuals, not just persons who might happen to come under investigation, thereby running afoul of 4th Amendment protections. Carpenter, 138 S.Ct at 2218. In Jones, the minority found that the point at which tracking the vehicle
became a search “was surely crossed before the 4–week mark.” Jones, 565 U.S. at 430 (Alito, J., concurring). Here, the government can conduct tracking well beyond four weeks. Clearly, such long term tracking violates the 4th Amendment.

B. Remote ID Utilizes More Intrusive Tracking Technology Than That Already Recognized as Unconstitutional

The various technological considerations of previous cases, when compared with the data gathering of FAA’s final rule here, show even greater infringement concerns for the Fourth Amendment that warrant close consideration from this Court. As the Supreme Court recognized in Carpenter, the cell phone is “almost a feature of human anatomy” with it being in arm’s reach most of the time, thereby presenting significant privacy concerns. 138 S.Ct.at 2218 (citing Riley, 573 U.S. at 385. When drones are being flown, operators use hand-held controllers within arm’s reach all the time. FAAs constant tracking of controllers arguably raises even greater privacy concerns than cell phones.

The vast majority of drones are controlled through a handheld controller, in some cases a cell phone, with a small number of drones controlled via laptops. The pilot must always be able to immediately take control of the controller to safely deconflict with manned aircraft. 14 CFR 107.12(a)(2). This means that to track the controller is to always track the person. Also, all pilots are required to always keep their drones within visual line of sight. 14 CFR 107.31, 49 USC 44809(a)(3). To track the drone is to always track the person.

The accuracy of tracking at issue here is also greater, and thus more concerning, than the technology contemplated in previous cases. Remote ID is more intrusive than the location information at issue in Jones or Carpenter. The cell-site location information (CSLI) in Carpenter put the defendant “within a wedge-shaped sector ranging from one-eight to four square miles.” 138 S.Ct at 2218. Jones involved a GPS tracker that was accurate to “within 50 to 100 feet” horizontal distance. 565 U.S. at 403. Standard ID drones transmit the person’s location every 1 second, with 15ft of vertical accuracy, and 100 feet of horizontal accuracy. JA 118 at 89.310(h). BMID has the same drone horizontal accuracy, with real time tracking of the drone. JA 119 at 89.320(h). The government is able to locate much more than a “wedge” of square miles; this is tracking with a pinpoint in terms of feet.

Remote ID is also more intrusive in accessibility. Jones’ GPS beacon communicated by cellular phone to one government computer which the government had to use to access the data. 565 U.S. at 403. Remote ID data can be accessed in real time by any law enforcement laptop or phone capable of receiving Wifi or Bluetooth, without any cellular or internet connection. See JA 118-119 at 89.310(g), 89.320(g). Most law enforcement computers are already so equipped, in essence costing nothing. Making the “substantial quantum of intimate information” provided by GPS monitoring available at low cost “may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’” Jones, 565 U.S. at 416 (Sotomayor, J., concurring) (internal citations omitted). Even more than the GPS tracking beacon in Jones, Remote ID “evades the ordinary checks that constrain abusive law enforcement practices[.]” Id.

Additionally, unlike the cell phone data at issue in Carpenter, here no middleman is needed to receive the data. No warrant or court order is needed to access the information. It can all be received and logged for future use by the government, without the public seeing how the information is being aggregated and used. It can also be monitored and logged by anyone using basic and inexpensive tools, similar to what is already done with manned aircraft Automatic Dependent Surveillance-Broadcast transmissions. See, e.g. https://flightaware.com/adsb/coverage; https://adsbexchange.com/how-to-feed/.

In summary, Remote ID stands for intrusive tracking of everyone, everywhere, all the time, with extremely low costs and ease of accessibility for law enforcement without judicial safeguards. FAA cannot simply circumvent the Fourth Amendment expectation in privacy by regulatory requirement in lieu of a warrant.

Big legal issues not answered in the RaceDayQuads ruling:

  • Whether monitoring a remote ID of a drone or person inside the 3 dimension portion of a person’s curtilage was considered a search. Ya, that’s a big one.
  • Whether there is an expectation of privacy in the airspace below the tree line, low to the ground, etc. such as a person on the ground holding the ground controller outside of his house.
  • Whether there is any statutory authority for the FAA to regulate the lower portions of the sky below the tree line with the person on the ground.
  • Whether the Federal government has any Article 1 Section 8 Commerce Clause power for the lower portions of the air.
  • At what point in long-term monitoring will tracking remote ID become illegal?

Counter Drone Liabilities

There are all sorts of issues here. I’ll just jot down some:

  • Government personnel face Bivens actions for the violation of 4th Amendment rights.
  • Depending on the facts of the situation and the type of technology in play, the government entity or contractor not authorized to use counter-drone technology could face investigations, fines, and injunctions from federal agencies.
  • The evidence gained during the illegal counter drone technology usage might be suppressed if used in a prosecution. While you stopped the attack, you couldn’t get the conviction.
  • Your usage, lack of usage, usage too late, or too early, caused all sorts of other types of injury. You now get sued for that damage caused.
  • The method of interdiction was not reasoned/tailored to minimize collateral damage. It wasn’t data-driven but just a gut feeling or ignorant conclusion.
  • 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 if they brought in the counter drone technology.
  • 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 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!
  • The company relying on some former law enforcement guy now retired and acting as a consultant thinking he can play attorney now after reading this article. The company could maybe solve this problem by hiring me. ;)
  • You didn’t test your counter drone technology during real-world conditions at the location it is deployed at. From the INTERPOL report, “When evaluating a C-UAS system it should be tested in the environment that it is intended to be operating in to ensure its effectiveness and reliability to detect, track, identify or mitigate drones. If the system is tested in a different environment than its intended operation, the results and the effectiveness of the C-UAS may be compromised.”
  • You DID test it during real world conditions. Sometimes RF irradiators can have issues with transmitting. This could be due to improper installation or manufacturing. This could result in certain erroneous RF readings, interference, etc. You need to test things out in real-world conditions which present issues. One mitigation is to maybe test out the systems in a gradual approach such as at 2 AM first, then move to other days and times until it is capable of being deployed 24/7. Also, sometimes failing pieces of machinery or electrical equipment can throw off RF in all sorts of spectrums that could interfere with your receivers. Consider 1 or 2 weeks of testing so as to identify any potential interference (e.g. the machine shop with failing equipment near the airport is working during the weekend but starts up bright and early on Monday at 6 AM).
  • You don’t keep things up-to-date. From the same INTERPOL report, “When the C-UAS is installed at a location the system may need constant or regular adjustments to ensure that it operates at its most effective capability and ensure that any existing or new infrastructure that is constructed within the detection range of the system does not reduce its operational envelope. Each C-UAS also needs to be regularly tested to ensure it meets the operational needs of law enforcement by confirming its operability to detect, track, identify and mitigate drones. These tests should take into account the emerging drone threat and evolution of the drone market to ensure that any system’s capability matches the evolving threat from criminal use of drones.”
  • Improper training of the customer. The manufacturer might face issues regarding negligent training, product liability, etc. claims for improper/insufficient warnings or notices. The end customer may not properly implement the technology.
  • “Acts of terrorism” in contracts, insurance policy exclusions, etc.  Make sure your liability mitigation strategies are not undermined by some type of acts of terrorism clause somewhere in a document. Also, most likely a future drone attack has a greater probability of 2 or more drones being used. Furthermore, due to the limited battery life, multiple drones may be employed so as to maximize the duration of terror. So in addition to looking at the “acts of terrorism” type of language somewhere, consider looking at the definition of “event” because that can cause issues. See the World Trade Center litigation cases. Was the 9/11 attacks one event or more?

In conjunction with that, there are also things surrounding whether liability was eliminated or questionable:

  • Sovereign immunity and whether it was waived or not (Federal, state, and local).
  • Jurisdictional authority to criminalize certain types of actions (e.g. Federal government criminalizing the destruction of aircraft when the aircraft is physically in a person’s vertical property).
  • The common law of self-defense.
  • The contractor/manufacturer availed themselves of some government program to limit liability.
  • Preemption

Legal Problems Counter UAS Manufacturers Have

The laws above still apply to counter UAS manufacturers. But this creates additional issues that users don’t deal with.

In order to defeat the criminal, you have to do the same actions (red team) to validate your solution. I’ll give you some examples and you can see how this plays out.

  • Manufacturer wants to impliment a jamming technology. How does the manufacturer test out how different drones respond to C2 and GPS jamming? How does the manufacturer validate their sensors are not affected by the jamming?
  • A manufacturer who sees remote ID falsification (spoofing) being an issue needs to test out algorythms/machine learning to discriminate a real drone flight from a spoofed flight used to lead law enforcement on a wild goose chase.  This video can give you a good example as to why manufacturers would want to design for this.  The manufcturer may need to get approals to not comply with remote ID.

Frequently Asked Questions about Counter UAS

Can I jam a drone signal?

No, federal law allows only certain federal agencies to jam drone signals. It is highly illegal for anyone else to do it.

Do drone jammers work?

Yes, which is why they are illegal for anyone, except certain federal agencies, to use them to jam drones. Drones operate on the same radio frequencies as many other things such as Bluetooth, wifi, etc. You not only jam the drone but everyone’s radios in the area. This is highly illegal.

What to do if a drone is spying on you?

Call the police. Do not take matters into your own hands as that can cause all sorts of criminal and civil liabilities.

Are drone jammers legal in California?

No, drone jammers are illegal to operate throughout the United States except for certain federal agencies which have been given permission.

How do you legally take down a drone?

Just call the police. Damaging the drone can result in a lawsuit for you destroying their drone. Some federal agencies have been given permission to jam or shoot down drones.

Can you shoot down a drone in your yard?

Just call the police. There are many legal issues here which could expose you to criminal and civil liabilities. 18 USC Section 32 says destroying an aircraft is a federal crime.

Why is illegal to shoot down a drone?

Federal law makes destroying an aircraft a federal crime. See 18 USC Section 32. Many states also have laws against you destroying people’s property.

Further Reading

DOJ and Drones: Protection, Policy, and Enforcement.  Starting on page 275 of DOJ Journal of Federal Law and Practice May 2021 edition.

Conclusion:

As you can see, there are many legal issues surrounding this area which makes the creation, testing, marketing, and use of counter drone technology problematic.

There are ways that the liability can be lessened, but it cannot be completely removed. Congress and 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.

Current United States Counter Drone Law

6 U.S.C. § 210G. Protection of certain facilities and assets from unmanned aircraft. (Giving the Department of Homeland Security and the Department of Justice CUAS Authority)

(a) Authority.—Notwithstanding section 46502 of title 49, United States Code, or sections 32, 1030, 1367 and chapters 119 and 206 of title 18, United States Code, the Secretary and the Attorney General may, for their respective Departments, take, and may authorize personnel with assigned duties that include the security or protection of people, facilities, or assets, to take such actions as are described in subsection (b)(1) that are necessary to mitigate a credible threat (as defined by the Secretary or the Attorney General, 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) IN GENERAL.—The actions authorized in subsection (a) are the following:

(A) During the operation of the unmanned aircraft system, 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 communication, an oral communication, or an 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, if necessary, to disable, damage, or destroy the unmanned aircraft system or unmanned aircraft.

(2) REQUIRED COORDINATION.—The Secretary and the Attorney General shall develop for their respective Departments the actions described in paragraph (1) in coordination with the Secretary of Transportation.

(3) RESEARCH, TESTING, TRAINING, AND EVALUATION.—The Secretary and the Attorney General shall conduct research, testing, training on, and evaluation of any equipment, including any electronic equipment, to determine its capability and utility prior to the use of any such technology for any action described in subsection (b)(1).

(4) COORDINATION.—The Secretary and the Attorney General shall coordinate with the Administrator of the Federal Aviation Administration when any action authorized by this section might affect aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, or the use of the airspace.

(c) Forfeiture.—Any unmanned aircraft system or unmanned aircraft described in subsection (a) that is seized by the Secretary or the Attorney General is subject to forfeiture to the United States.

(d) Regulations And Guidance.—

(1) IN GENERAL.—The Secretary, the Attorney General, and the Secretary of Transportation may prescribe regulations and shall issue guidance in the respective areas of each Secretary or the Attorney General to carry out this section.

(2) COORDINATION.—

(A) COORDINATION WITH DEPARTMENT OF TRANSPORTATION.—The Secretary and the Attorney General shall coordinate the development of their respective guidance under paragraph (1) with the Secretary of Transportation.

(B) EFFECT ON AVIATION SAFETY.—The Secretary and the Attorney General shall respectively coordinate with the Secretary of Transportation and the Administrator of the Federal Aviation Administration before issuing any guidance, or otherwise implementing this section, if such guidance or implementation might affect aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, or the use of airspace.

(e) Privacy Protection.—The regulations or guidance issued to carry out actions authorized under subsection (b) by each Secretary or the Attorney General, as the case may be, shall ensure that—

(1) the interception or acquisition of, or access to, or maintenance or use of, communications to or from an unmanned aircraft system under this section is conducted in a manner consistent with the First and Fourth Amendments to the Constitution of the United States and applicable provisions of Federal law;

(2) communications to or from an unmanned aircraft system are intercepted or acquired only to the extent necessary to support an action described in subsection (b)(1);

(3) records of such communications are maintained only for as long as necessary, and in no event for more than 180 days, unless the Secretary of Homeland Security or the Attorney General determine that maintenance of such records is necessary to investigate or prosecute a violation of law, directly support an ongoing security operation, is required under Federal law, or for the purpose of any litigation;

(4) such communications are not disclosed outside the Department of Homeland Security or the Department of Justice unless the disclosure—

(A) is necessary to investigate or prosecute a violation of law;

(B) would support the Department of Defense, a Federal law enforcement agency, or the enforcement activities of a regulatory agency of the Federal Government in connection with a criminal or civil investigation of, or any regulatory, statutory, or other enforcement action relating to an action described in subsection (b)(1);

(C) is between the Department of Homeland Security and the Department of Justice in the course of a security or protection operation of either agency or a joint operation of such agencies; or

(D) is otherwise required by law; and

(5) to the extent necessary, the Department of Homeland Security and the Department of Justice are authorized to share threat information, which shall not include communications referred to in subsection (b), with State, local, territorial, or tribal law enforcement agencies in the course of a security or protection operation.

(f) Budget.—The Secretary and the Attorney General shall submit to Congress, as a part of the homeland security or justice budget materials for each fiscal year after fiscal year 2019, a consolidated funding display that identifies the funding source for the actions described in subsection (b)(1) within the Department of Homeland Security or the Department of Justice. The funding display shall be in unclassified form, but may contain a classified annex.

(g) Semiannual Briefings And Notifications.—

(1) IN GENERAL.—On a semiannual basis during the period beginning 6 months after the date of enactment of this section and ending on the date specified in subsection (i), the Secretary and the Attorney General shall, respectively, provide a briefing to the appropriate congressional committees on the activities carried out pursuant to this section.

(2) REQUIREMENT.—Each briefing required under paragraph (1) shall be conducted jointly with the Secretary of Transportation.

(3) CONTENT.—Each briefing required under paragraph (1) shall include—

(A) policies, programs, and procedures to mitigate or eliminate impacts of such activities to the National Airspace System;

(B) a description of instances in which actions described in subsection (b)(1) have been taken, including all such instances that may have resulted in harm, damage, or loss to a person or to private property;

(C) a description of the guidance, policies, or procedures established to address privacy, civil rights, and civil liberties issues implicated by the actions allowed under this section, as well as any changes or subsequent efforts that would significantly affect privacy, civil rights or civil liberties;

(D) a description of options considered and steps taken to mitigate any identified impacts to the national airspace system related to the use of any system or technology, including the minimization of the use of any technology that disrupts the transmission of radio or electronic signals, for carrying out the actions described in subsection (b)(1);

(E) a description of instances in which communications intercepted or acquired during the course of operations of an unmanned aircraft system were held for more than 180 days or shared outside of the Department of Justice or the Department of Homeland Security;

(F) how the Secretary, the Attorney General, and the Secretary of Transportation have informed the public as to the possible use of authorities under this section;

(G) how the Secretary, the Attorney General, and the Secretary of Transportation have engaged with Federal, State, and local law enforcement agencies to implement and use such authorities.

(4) UNCLASSIFIED FORM.—Each briefing required under paragraph (1) shall be in unclassified form, but may be accompanied by an additional classified briefing.

(5) NOTIFICATION.—Within 30 days of deploying any new technology to carry out the actions described in subsection (b)(1), the Secretary and the Attorney General shall, respectively, submit a notification to the appropriate congressional committees. Such notification shall include a description of options considered to mitigate any identified impacts to the national airspace system related to the use of any system or technology, including the minimization of the use of any technology that disrupts the transmission of radio or electronic signals, for carrying out the actions described in subsection (b)(1).

(h) Rule Of Construction.—Nothing in this section may be construed to—

(1) vest in the Secretary or the Attorney General any authority of the Secretary of Transportation or the Administrator of the Federal Aviation Administration;

(2) vest in the Secretary of Transportation or the Administrator of the Federal Aviation Administration any authority of the Secretary or the Attorney General;

(3) vest in the Secretary of Homeland Security any authority of the Attorney General;

(4) vest in the Attorney General any authority of the Secretary of Homeland Security; or

(5) provide a new basis of liability for any State, local, territorial, or tribal law enforcement officers who participate in the protection of a mass gathering identified by the Secretary or Attorney General under subsection (k)(3)(C)(iii)(II), act within the scope of their authority, and do not exercise the authority granted to the Secretary and Attorney General by this section.

(i) Termination.—The authority to carry out this section with respect to a covered facility or asset specified in subsection (k)(3) shall terminate on the date that is 4 years after the date of enactment of this section.

(j) Scope Of Authority.—Nothing in this section shall be construed to provide the Secretary or the Attorney General with additional authorities beyond those described in subsections (a) and (k)(3)(C)(iii).

(k) Definitions.—In this section:

(1) The term ‘appropriate congressional committees’ means—

(A) the Committee on Homeland Security and Governmental Affairs, the Committee on Commerce, Science, and Transportation, and the Committee on the Judiciary of the Senate; and

(B) the Committee on Homeland Security, the Committee on Transportation and Infrastructure, the Committee on Energy and Commerce, and the Committee on the Judiciary of the House of Representatives.

(2) The term ‘budget’, with respect to a fiscal year, means the budget for that fiscal year that is submitted to Congress by the President under section 1105(a) of title 31.

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

(A) is identified as high-risk and a potential target for unlawful unmanned aircraft activity by the Secretary or the Attorney General, in coordination with the Secretary of Transportation with respect to potentially impacted airspace, through a risk-based assessment for purposes of this section (except that in the case of the missions described in subparagraph (C)(i)(II) and (C)(iii)(I), such missions shall be presumed to be for the protection of a facility or asset that is assessed to be high-risk and a potential target for unlawful unmanned aircraft activity);

(B) is located in the United States (including the territories and possessions, territorial seas or navigable waters of the United States); and

(C) directly relates to one or more—

(i) missions authorized to be performed by the Department of Homeland Security, consistent with governing statutes, regulations, and orders issued by the Secretary, pertaining to—

(I) security or protection functions of the U.S. Customs and Border Protection, including securing or protecting facilities, aircraft, and vessels, whether moored or underway;

(II) United States Secret Service protection operations pursuant to sections 3056(a) and 3056A(a) of title 18, United States Code, and the Presidential Protection Assistance Act of 1976 (18 U.S.C. 3056 note); or

(III) protection of facilities pursuant to section 1315(a) of title 40, United States Code;

(ii) missions authorized to be performed by the Department of Justice, consistent with governing statutes, regulations, and orders issued by the Attorney General, pertaining to—

(I) personal protection operations by—

(aa) the Federal Bureau of Investigation as specified in section 533 of title 28, United States Code; and

“(bb) the United States Marshals Service of Federal jurists, court officers, witnesses, and other threatened persons in the interests of justice, as specified in section 566(e)(1)(A) of title 28, United States Code;

(II) protection of penal, detention, and correctional facilities and operations conducted by the Federal Bureau of Prisons; or

(III) protection of the buildings and grounds leased, owned, or operated by or for the Department of Justice, and the provision of security for Federal courts, as specified in section 566(a) of title 28, United States Code;

(iii) missions authorized to be performed by the Department of Homeland Security or the Department of Justice, acting together or separately, consistent with governing statutes, regulations, and orders issued by the Secretary or the Attorney General, respectively, pertaining to—

(I) protection of a National Special Security Event and Special Event Assessment Rating event;

(II) the provision of support to State, local, territorial, or tribal law enforcement, upon request of the chief executive officer of the State or territory, to ensure protection of people and property at mass gatherings, that is limited to a specified timeframe and location, within available resources, and without delegating any authority under this section to State, local, territorial, or tribal law enforcement; or

(III) protection of an active Federal law enforcement investigation, emergency response, or security function, that is limited to a specified timeframe and location; and

(iv) missions authorized to be performed by the United States Coast Guard, including those described in clause (iii) as directed by the Secretary, and as further set forth in section 104 of title 14, United States Code, and consistent with governing statutes, regulations, and orders issued by the Secretary of the Department in which the Coast Guard is operating.

(4) The terms ‘electronic communication’, ‘intercept’, ‘oral communication’, and ‘wire communication’ have the meaning given those terms in section 2510 of title 18, United States Code.

(5) The term ‘homeland security or justice budget materials’, with respect to a fiscal year, means the materials submitted to Congress by the Secretary and the Attorney General in support of the budget for that fiscal year.

(6) For purposes of subsection (a), the term ‘personnel’ means officers and employees of the Department of Homeland Security or the Department of Justice.

(7) The terms ‘unmanned aircraft’ and ‘unmanned aircraft system’ have the meanings given those terms in section 44801, of title 49, United States Code.

(8) For purposes of this section, the term ‘risk-based assessment’ includes an evaluation of threat information specific to a covered facility or asset and, with respect to potential impacts on the safety and efficiency of the national airspace system and the needs of law enforcement and national security at each covered facility or asset identified by the Secretary or the Attorney General, respectively, of each of the following factors:

(A) Potential impacts to safety, efficiency, and use of the national airspace system, including potential effects on manned aircraft and unmanned aircraft systems, aviation safety, airport operations, infrastructure, and air navigation services related to the use of any system or technology for carrying out the actions described in subsection (b)(1).

(B) Options for mitigating any identified impacts to the national airspace system related to the use of any system or technology, including minimizing when possible the use of any technology which disrupts the transmission of radio or electronic signals, for carrying out the actions described in subsection (b)(1).

(C) Potential consequences of the impacts of any actions taken under subsection (b)(1) to the national airspace system and infrastructure if not mitigated.

(D) The ability to provide reasonable advance notice to aircraft operators consistent with the safety of the national airspace system and the needs of law enforcement and national security.

(E) The setting and character of any covered facility or asset, including whether it is located in a populated area or near other structures, whether the facility is open to the public, whether the facility is also used for nongovernmental functions, and any potential for interference with wireless communications or for injury or damage to persons or property.

(F) The setting, character, timeframe, and national airspace system impacts of National Special Security Event and Special Event Assessment Rating events.

(G) Potential consequences to national security, public safety, or law enforcement if threats posed by unmanned aircraft systems are not mitigated or defeated.

(l) Department Of Homeland Security Assessment.—

(1) REPORT.—Not later than 1 year after the date of the enactment of this section, the Secretary shall conduct, in coordination with the Attorney General and the Secretary of Transportation, an assessment to the appropriate congressional committees, including—

(A) an evaluation of the threat from unmanned aircraft systems to United States critical infrastructure (as defined in this Act) and to domestic large hub airports (as defined in section 40102 of title 49, United States Code);

(B) an evaluation of current Federal and State, local, territorial, or tribal law enforcement authorities to counter the threat identified in subparagraph (A), and recommendations, if any, for potential changes to existing authorities to allow State, local, territorial, and tribal law enforcement to assist Federal law enforcement to counter the threat where appropriate;

(C) an evaluation of the knowledge of, efficiency of, and effectiveness of current procedures and resources available to owners of critical infrastructure and domestic large hub airports when they believe a threat from unmanned aircraft systems is present and what additional actions, if any, the Department of Homeland Security or the Department of Transportation could implement under existing authorities to assist these entities to counter the threat identified in subparagraph (A);

(D) an assessment of what, if any, additional authorities are needed by each Department and law enforcement to counter the threat identified in subparagraph (A); and

(E) an assessment of what, if any, additional research and development the Department needs to counter the threat identified in subparagraph (A).

(2) UNCLASSIFIED FORM.—The report required under paragraph (1) shall be submitted in unclassified form, but may contain a classified annex.”.

10 U.S.C. § 130i. Protection of certain facilities and assets from unmanned aircraft (Giving Secretary of Defense CUAS Authority)

(a) Authority.—Notwithstanding section 46502 of title 49, or any provision of title 18, the Secretary of Defense may take, and may authorize members of the armed forces and officers and civilian employees of the Department of Defense with assigned duties that include safety, security, or protection of personnel, facilities, or assets, 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 communication, an oral communication, or an 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 and Guidance.—

(1) 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.

(2)

(A) The Secretary of Defense and the Secretary of Transportation shall coordinate in the development of guidance under paragraph (1).

(B) The Secretary of Defense shall coordinate with the Secretary of Transportation and the Administrator of the Federal Aviation Administration before issuing any guidance or otherwise implementing this section if such guidance or implementation might affect aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, or the use of airspace.

(e) Privacy Protection.—The regulations prescribed or guidance issued under subsection (d) shall ensure that—

(1) the interception or acquisition of, or access to, communications to or from an unmanned aircraft system under this section is conducted in a manner consistent with the fourth amendment to the Constitution and applicable provisions of Federal law;

(2) communications to or from an unmanned aircraft system are intercepted, acquired, or accessed only to the extent necessary to support a function of the Department of Defense;

(3) records of such communications are not maintained for more than 180 days unless the Secretary of Defense determines that maintenance of such records—

(A) is necessary to support one or more functions of the Department of Defense; or

(B) is required for a longer period to support a civilian law enforcement agency or by any other applicable law or regulation; and

(4) such communications are not disclosed outside the Department of Defense unless the disclosure—

(A) would fulfill a function of the Department of Defense;

(B) would support a civilian law enforcement agency or the enforcement activities of a regulatory agency of the Federal Government in connection with a criminal or civil investigation of, or any regulatory action with regard to, an action described in subsection (b)(1); or

(C) is otherwise required by law or regulation.

(f) Budget.—The Secretary of Defense shall submit to Congress, as a part of the defense budget materials for each fiscal year after fiscal year 2018, a consolidated funding display that identifies the funding source for the actions described in subsection (b)(1) within the Department of Defense. The funding display shall be in unclassified form, but may contain a classified annex.

(g) Semiannual Briefings.—

(1) On a semiannual basis during the five-year period beginning March 1, 2018, the Secretary of Defense and the Secretary of Transportation, shall jointly provide a briefing to the appropriate congressional committees on the activities carried out pursuant to this section. Such briefings shall include—

(A) policies, programs, and procedures to mitigate or eliminate impacts of such activities to the National Airspace System;

(B) a description of instances where actions described in subsection (b)(1) have been taken;

(C) how the Secretaries have informed the public as to the possible use of authorities under this section; and

(D) how the Secretaries have engaged with Federal, State, and local law enforcement agencies to implement and use such authorities.

(2) Each briefing under paragraph (1) shall be in unclassified form, but may be accompanied by an additional classified briefing.

(h) Rule of Construction.—Nothing in this section may be construed to—

(1) vest in the Secretary of Defense any authority of the Secretary of Transportation or the Administrator of the Federal Aviation Administration under title 49; and

(2) vest in the Secretary of Transportation or the Administrator of the Federal Aviation Administration any authority of the Secretary of Defense under this title.

(i) Partial Termination.—

(1) Except as provided by paragraph (2), the authority to carry out this section with respect to the covered facilities or assets specified in clauses (iv) through (viii) of subsection (j)(3) 1 shall terminate on December 31, 2020.

(2) The President may extend by 180 days the termination date specified in paragraph (1) if before November 15, 2020, the President certifies to Congress that such extension is in the national security interests of the United States.

(j) Definitions.—In this section:

(1) The term “appropriate congressional committees” means—

(A) the congressional defense committees;

(B) the Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Commerce, Science, and Transportation of the Senate; and

(C) the Permanent Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Transportation and Infrastructure of the House of Representatives.

(2) The term “budget”, with respect to a fiscal year, means the budget for that fiscal year that is submitted to Congress by the President under section 1105(a) of title 31.

(3) The term “covered facility or asset” means any facility or asset that—

(A) is identified by the Secretary of Defense, in consultation with the Secretary of Transportation with respect to potentially impacted airspace, through a risk-based assessment for purposes of this section;

(B) is located in the United States (including the territories and possessions of the United States); and

(C) directly relates to the missions of the Department of Defense pertaining to—

(i) nuclear deterrence, including with respect to nuclear command and control, integrated tactical warning and attack assessment, and continuity of government;

(ii) missile defense;

(iii) national security space;

(iv) assistance in protecting the President or the Vice President (or other officer immediately next in order of succession to the office of the President) pursuant to the Presidential Protection Assistance Act of 1976 (18 U.S.C. 3056 note);

(v) air defense of the United States, including air sovereignty, ground-based air defense, and the National Capital Region integrated air defense system;

(vi) combat support agencies (as defined in paragraphs (1) through (4) of section 193(f) of this title);

(vii) special operations activities specified in paragraphs (1) through (9) of section 167(k) of this title;

(viii) production, storage, transportation, or decommissioning of high-yield explosive munitions, by the Department; or

(ix) a Major Range and Test Facility Base (as defined in section 196(i) of this title).

(4) The term “defense budget materials”, with respect to a fiscal year, means the materials submitted to Congress by the Secretary of Defense in support of the budget for that fiscal year.

(5) The terms “electronic communication”, “intercept”, “oral communication”, and “wire communication” have the meanings given those terms in section 2510 of title 18.

(6) 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).

14 U.S.C. § 104. Protecting against unmanned aircraft (Giving the Coast Guard CUAS Authority).

For the purposes of section 210G(k)(3)(C)(iv) of the Homeland Security Act of 2002, the missions authorized to be performed by the United States Coast Guard shall be those related to—

(1) functions of the U.S. Coast Guard relating to security or protection of facilities and assets assessed to be high-risk and a potential target for unlawful unmanned aircraft activity, including the security and protection of—

(A) a facility, including a facility that is under the administrative control of the Commandant; and

(B) a vessel (whether moored or underway) or an aircraft, including a vessel or aircraft—

(i) that is operated by the Coast Guard, or that the Coast Guard is assisting or escorting; and

(ii) that is directly involved in a mission of the Coast Guard pertaining to—

(I) assisting or escorting a vessel of the Department of Defense;

(II) assisting or escorting a vessel of national security significance, a high interest vessel, a high capacity passenger vessel, or a high value unit, as those terms are defined by the Secretary;

(III) section 91(a) of this title;

(IV) assistance in protecting the President or the Vice President (or other officer next in order of succession to the Office of the President) pursuant to the Presidential Protection Assistance Act of 1976 (18 U.S.C. 3056 note);

(V) protection of a National Special Security Event and Special Event Assessment Rating events;

(VI) air defense of the United States, including air sovereignty, ground-based air defense, and the National Capital Region integrated air defense system; or

(VII) a search and rescue operation; and

(2) missions directed by the Secretary pursuant to 210G(k)(3)(C)(iii) of the Homeland Security Act of 2002.

50 U.S.C. § 2661 (Giving Secretary of Energy CUAS Powers)

(a) AUTHORITY.—Notwithstanding any provision of title 18, United States Code, the Secretary of Energy may take such actions described in subsection (b)(1) that are necessary to mitigate the threat (as defined by the Secretary of Energy, 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 Energy 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 Energy is subject to forfeiture to the United States.

(d) REGULATIONS.—The Secretary of Energy 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 is—

(A) identified by the Secretary of Energy for purposes of this section;

(B) located in the United States (including the territories and possessions of the United States); and

(C) owned by the United States or contracted to the United States, to store or use special nuclear material.

(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 Federal Aviation Administration published a Notice to Airmen (NOTAM) warning UAS flyers to keep their drones 3,000ft horizontally and 1,000ft vertically away from “DEPARTMENT OF DEFENSE (DOD) AND DEPARTMENT OF ENERGY (DOE) FACILITIES AND MOBILE ASSETS, INCLUDING VESSELS AND GROUND VEHICLE CONVOYS AND THEIR ASSOCIATED ESCORTS, SUCH AS UNITED STATES COAST GUARD (USCG) OPERATED VESSELS.” It warned that those assets could exercise counter UAS technology against the unmanned aircraft. Additionally, the FAA advised it would apply 99.7 security instruction flight restrictions to the maximum extent possible to these areas.

6 U.S.C. Section 321 COUNTERING UNMANNED AIRCRAFT SYSTEMS COORDINATOR

(a) Coordinator.–

(1) In general.–The Secretary shall designate an individual in a Senior Executive Service position (as defined in section 3132 of title 5, United States Code) of the Department within the Office of Strategy, Policy, and Plans as the Countering Unmanned Aircraft Systems Coordinator (in this section referred to as the Coordinator’) and provide appropriate staff to carry out the responsibilities of the Coordinator.

(2) Responsibilities.–The Coordinator shall–

(A) oversee and coordinate with relevant Department offices and components, including the Office of Civil Rights and Civil Liberties and the Privacy Office, on the development of guidance and regulations to counter threats associated with unmanned aircraft systems (in this section referred to as`UAS’) as described in section 210G;

(B) promote research and development of counter UAS technologies in coordination within the Science and Technology Directorate;

(C) coordinate with the relevant components and offices of the Department, including the Office of Intelligence and Analysis, to ensure the sharing of information, guidance, and intelligence relating to countering UAS threats, counter UAS threat assessments, and counter UAS technology, including the retention of UAS and counter UAS incidents within the Department;

(D) serve as the Department liaison, in coordination with relevant components and offices of the Department, to the Department of Defense, Federal, State, local, and Tribal law enforcement entities, and the private sector regarding the activities of the Department relating to countering UAS;

(E) maintain the information required under section 210G(g)(3); and

(F) carry out other related counter UAS authorities and activities under section 210G, as directed by the Secretary.

(b) Coordination With Applicable Federal Laws.–The Coordinator shall, in addition to other assigned duties, coordinate with relevant Department components and offices to ensure testing, evaluation, or deployment of a system used to identify, assess, or defeat a UAS is carried out in accordance with applicable Federal laws.

(c) Coordination With Private Sector.–The Coordinator shall, among other assigned duties, working with the Office of Partnership and Engagement and other relevant Department offices and components, or other Federal agencies, as appropriate, serve as the principal Department official responsible for sharing to the private sector information regarding counter UAS technology, particularly information regarding instances in which counter UAS technology may impact lawful private sector services or systems.’