Safeguarding America’s Skies Act of 2018 (H.R.5366)


Brief Summary of the Safeguarding America’s Skies Act:

Congresswoman Vicky Hartzler (MO-04) introduced the Safeguarding America’s Skies Act on 3/21/2018. Congresswoman Hartzler explained in a press release, “Title 18 also prevents federal agencies from using tailored jamming or protocol manipulation to interdict drones because it is considered intruding on a ‘protected computer.’ The National Defense Authorization Act for Fiscal Years 2017 and 2018 provided the Department of Defense with relief from Title 18 restrictions in order to protect certain military installations and assets. Unfortunately, federal agencies like the Department of Justice and the Department of Homeland Security continue to have their hands tied preventing them from interdicting a drone that poses a reasonable threat, such as those carrying drugs across the border.” For a much more in-depth legal discussion on all the legal issues surrounding countering drones, see my article 7 Big Problems With Counter Drone Technology.

The other major point is that this Act tells the Secretary of Transportation to create a ” final rule requiring remote identification and tracking of UAVs, including UAVs for recreational use, to ensure that cooperative aircraft are identified.”

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Notable Points of the Safeguarding America’s Skies Act:

  • Calls for the creation of a final rule for remote identification and tracking of unmanned aircraft.
  • Tells DHS, DOJ, DOT, FCC, and NTIA to all coordinate to minimize harmful interference to licensed and unlicensed communications.
  • The unmanned aircraft that is seized is subject to forfeiture to the United States.
  • The information pertaining to the technology, procedures, and protocols used to carry out this section, including any regulations or guidance issued to carry out this section, shall be exempt from the Freedom of Information Act.

Pros:

  • Gives DOJ and DHS the ability to counter border drug running and prison drops.
  • If DOJ and DHS can start using these pieces of equipment more, this will then create a market for counter UAS equipment. Companies will step in to fill this need which will result in more jobs.
  • If companies are competing, more money will be  pumped into researching better and better CUAS equipment. This will also have a spill over effect in making our military stronger with their CUAS abilities.

Cons:

  • If you are going to give DOJ and DHS the ability to counter drones, why not also give the Department of the Interior and the U.S. Department of Agriculture the use to counter the drones being flown around wildfires?
  • The definition of  “covered facility or asset” does not exactly make sense as defined in (C) in relationship to facilities or assets.
  • Remote ID is not liked by the unmanned aircraft community and this could result in potential push back which could potentially jeopardize the entire act.
  • What about the state and local law enforcement?
  • It tells the DOT to get a final rule within 1 year. Rule making on average takes around 2-3 years.  What is the penalty if the final rule is not promulgated in time?
  • Says nothing regarding the FAA’s relaxed enforcement philosophy which is primarily education over enforcement. This policy needs to change.

Questions Left Unanswered:

  • So what? The FAA rarely prosecutes anyone. Why all the new regulations when the FAA does little with the drone regulations they currently have? Do you know how many FAA enforcement actions have happened from 2014 to the summer of 2017?  48
  • This will disproportionately hurt the law abiding. You’ll have three groups of people: (1) the law abiding, (2) the clueless, (3) and the illegal. Blowing the drone out of the sky will affect all 3 groups but remote ID and tracking will most likely affect only the law-abiding group unless there is a more robust system put in place that educates and ties the drone to a person. This whole “honor system” of registering the drone ended with massive amounts of non-compliance. Just compare the estimated drones sold versus drones registered. If you want a system of accountability, require at the point of sale registration.
  • What about all the drones already out there? Are you grandfathering them in? Do we have to retrofit them? If a $5 registration that could be easily completed online resulted in wide scale non-compliance, what type of compliance do you think you’ll get if people have to spend more than $5?
  • Won’t jamming hinder integration of drones into the national airspace? Unmanned aircraft systems have a communications link component and also use GPS for positioning.  If you open the door to jamming of the ISM frequencies or the GPS frequencies, this can have all sorts of trickle down effects. Imagine 5 years from now where more drones are flying in the NAS. If a jammer goes off, this could affect other unmanned aircraft flying in the area. Do commercial drone operators operating near sporting events have to plan for potential GPS and ISM jamming?
  • How will this affect manned aviation using GPS during IFR? Jamming GPS signals or spoofing them can cause all sorts of problems with manned aircraft operations.
  • It says remote identification AND tracking.  Are these two separate things? An equipment capability plus some type of tracking? Perhaps something similar to a gun registry?

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Actual Text of Safeguarding America’s Skies Act:

To amend title 18, United States Code, to provide for certain authorized actions regarding interdiction of unmanned aircraft, and for other purposes.

 

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Safeguarding America’s Skies Act of 2018’’.

SEC. 2. AUTHORIZED ACTIONS REGARDING INTERDICTION OF UNMANNED AIRCRAFT.

(a) IN GENERAL.—Chapter 1 of part I of title 18, United States Code, is amended by adding at the end of the following:

 

‘‘SEC. 28. AUTHORIZED ACTIONS REGARDING INTERDICTION OF UNMANNED AIRCRAFT.

 

‘‘(a) IN GENERAL.—Notwithstanding any other pro vision of this title, except as described in paragraph (1), the Secretary of Homeland Security and the Attorney General may, for their respective departments, authorize officers, employees, and contractors of the department assigned with duties that include safety, security, or protection of personnel, facilities, or assets of the department, to take such actions described in subsection (b) that are necessary to mitigate the threat (as defined by the Secretary of Homeland Security and the Attorney General, in consultation with the Secretary of Transportation) that an unauthorized UAV poses to the safety or security of a covered facility or asset. In taking such actions, the agency shall—

‘‘(1) avoid any infringement of the privacy and civil rights of the people of the United States and the freedom of the press consistent with the First and Fourth Amendments, including with regard to the testing of any equipment and the interception or acquisition of communications;

‘(2) limit the geographic reach and the duration of such actions to only those areas and timeframes that are reasonably necessary to address a reasonable threat; and

‘‘(3) use reasonable care not to interfere with non-targeted manned or unmanned aircraft, communications, equipment, facilities, or services.

‘‘(b) ACTIONS AUTHORIZED.—

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

‘‘(A) Detect, identify, monitor, and track, without prior consent, a UAV, including by means of interception of or other access to wire, oral, electronic, or radio communications or signals transmitted to or by the UAV, to evaluate whether the UAV poses a reasonable threat to the safety or security of a covered facility or asset.

‘‘(B) Warn the operator of the UAV, including by passive or active, and direct or indirect physical, electronic, radio, and electromagnetic means.

(C) Redirect, alter control, disable, disrupt, seize, or confiscate, without prior consent, a UAV that poses a reasonable threat as determined under subsection (a), including by intercepting, substituting, or disrupting wire, oral, electronic, or radio communications or signals transmitted to or by UAV.

‘‘(D) Use reasonable force to disable, disrupt, damage, or destroy a small unmanned aircraft, unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that poses a reasonable threat to the safety or security of a covered facility or asset.

‘‘(E) Conduct research, testing, training on, or evaluation of any equipment, including any electronic equipment, to determine its capability and utility to enable.

‘‘(2) REGULATIONS AND GUIDANCE.—The Secretary of Homeland Security and the Attorney General, in coordination with the Secretary of Transportation, may make rules and shall issue guidance in their respective areas to carry out this section.

‘‘(3) AVOIDANCE OF DUPLICATION.—The Secretary of Homeland Security, the Attorney General, and the Secretary of Transportation shall coordinate and avoid duplication in the development of guidance under this paragraph or otherwise implementing this section.

(4) MINIMIZATION OF HARMFUL INTERFERENCE.—The Secretary of Homeland Security, the Attorney General, and the Secretary of Transportation shall also coordinate with the Federal Communications Commission and the National Telecommunications and Information Administration to ensure that all actions taken and guidance and rules made under this subsection minimize harmful interference to licensed and unlicensed communications, devices, and services authorized by the Federal Communications Commission.

(5) FINAL RULE REGARDING REMOTE IDENTIFICATION AND TRACKING OF UAVS.—Not later than one year after the effective date of this section the Secretary of Transportation shall issue a final rule requiring remote identification and tracking of UAVs, including UAVs for recreational use, to ensure that cooperative aircraft are identified.

‘‘(c) FORFEITURE.—Any UAV described in subsection (a) that is seized by the Federal agency is subject to forfeiture to the United States.

‘‘(d) EXEMPTION FROM DISCLOSURE.—Information pertaining to the technology, procedures, and protocols used to carry out this section, including any regulations or guidance issued to carry out this section, shall be exempt from disclosure under section 552(b)(3) of title 5 and exempt from disclosure under State and local law requiring the disclosure of information.

‘‘(e) PRIVACY PROTECTION.—All actions taken and guidance and rules made under subsection (b)(2) shall ensure that—

‘‘(1) the interception or acquisition of or access to communications to or from UAV under this section is conducted in a manner consistent with the Fourth amendment to the Constitution and applicable provisions of Federal law;

‘‘(2) communications are intercepted, acquired, or accessed only to the extent necessary to mitigate the reasonable threat that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset;

‘‘(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 reasonably determine that maintenance of such records—

‘‘(A) is necessary to support one or more safety or security functions of the Department of Homeland Security or the Department of Justice, respectively; or

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

‘‘(4) such communications are not disclosed outside the Department of Homeland Security or the Department of Justice unless the disclosure, subject to paragraph (a)(1) above—

‘‘(A) would fulfill a safety or security function of the Department of Homeland Security or the Department of Justice;

‘‘(B) would support the Department of Defense, 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) SCOPE OF AUTHORITY.—Nothing in this section shall be construed to provide the Secretary of Homeland Security or the Attorney General additional authorities beyond those described in (b)(1) without authorization by law.

‘‘(g) REPORT TO CONGRESS.—The Attorney General and Secretary of Homeland Security, shall each submit to Congress, not later than one year after enactment, and each year thereafter, a report that shall include, at minimum—

‘‘(1) a description of actions taken, guidance provided, and rules made pursuant to this section, including a summary of public comments submitted in relation to such guidance or rules;

‘‘(2) a description of each Department’s effortsto address privacy, civil rights, and civil liberties issues implicated by the actions permitted by this section and other Federal and State government policies affecting UAVs;

‘‘(3) the number of UAVs that have been subject to each of the actions taken under subsection (b)(2), broken out by action;

‘‘(4) actions taken by each Department to inform the public of covered facilities and assets authorized by this section;

‘‘(5) implementation costs; or

‘‘(6) a description of any revisions to this section that may be desirable.

‘‘(h) DEFINITIONS.—In this section:

‘‘(1) The term ‘cooperative aircraft’ means aircraft that have an electronic means of identification aboard in operation.

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

‘‘(A) is identified by the Secretary of Homeland Security or the Attorney General;

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

‘‘(C) relates to—

‘‘(i) the buildings and grounds leased, owned, or operated by or for the Federal Government, including Federal Facility protection operations;

‘‘(ii) authorized protective operations, including but not limited to the protection of Federal jurists, court officers, witnesses, and other persons;

‘‘(iii) penal, detention, correctional, and judicial operations;

‘‘(iv) National Security Special Events, Special Event Assessment Ratings Events, or other mass gatherings or events that are reasonably assessed by the Department of Justice to be a potential target for terrorism or other criminal activity;

‘‘(v) active Federal law enforcement investigations;

‘‘(vi) operations that counter terrorism, narcotics, and transnational criminal organizations.

‘‘(vii) securing authorized vessels, whether moored or underway;

‘‘(viii) protection operations pursuant to section 3056;

‘‘(ix) critical infrastructure;

‘‘(x) Emergency Response Operations;

‘‘(xi) National Disaster Areas if it is determined by the Secretary of Homeland Security that unauthorized access to the airspace would restrict recovery efforts;

‘‘(xii) Natural or Hazardous Disaster Areas if it is determined by the Secretary of Homeland Security that unauthorized access to the airspace would restrict recovery efforts; and

‘‘(xiii) other areas identified by the President.

‘‘(3) The term ‘UAV’ means a small unmanned aircraft, unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, pay load, or cargo.

‘‘(4) The terms ‘unmanned aircraft,’ ‘small un manned 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).

‘‘(5) The terms ‘intercept’ and ‘wire, oral, electronic, or radio communications’ have the meaning given those terms in section 2510.

‘‘(6) The term ‘critical infrastructure’ has the meaning given that term in section 2339D except that the Attorney General may, in his or her determination, amend the definition for purposes of this section in the issuance of any guidance or rules made under subsection (b)(2).’’.

(b) CLERICAL AMENDMENT.—The table of sections for such chapter is amended by adding at the end the following:

‘‘28. Authorized actions regarding interdiction of unmanned aircraft.’’.

(c) CONFORMING AMENDMENTS.—Title 18, United States Code, is amended—

(1) in section 32, by adding at the end the following:

‘‘(d) Nothing in this section shall apply to any action lawfully taken under section 28.’’.

(2) in section 1030, by adding at the end the following:

‘‘(k) Nothing in this section shall apply to any action lawfully taken under section 28.’’.

(3) in section 1362 by adding at the end the following:

‘‘Nothing in this section shall apply to any action lawfully taken under section 28.’’;

(4) in section 1367, by adding at the end the following:

‘‘(c) Nothing in this section shall apply to any action lawfully taken under section 28.’’;

(5) in chapter 119—

(A) by adding at the end the following:

Ԥ 2523. Exception for interdiction of unmanned aircraft

‘‘Nothing in this chapter shall apply in the case of any action lawfully taken under section 28.’’.

(B) in the table of sections for such chapter, by adding at the end the following:

‘‘2523. Exception for interdiction of unmanned aircraft.’’; and

(6) in chapter 206—

(A) by adding at the end the following:

‘‘§ 3128. Exception for interdiction of unmanned aircraft

‘‘Nothing in this chapter shall apply in the case of any action lawfully taken under section 28.’’.

(B) in the table of sections for such chapter, by adding at the end the following:

‘‘3128. Exception for interdiction of unmanned aircraft.’’.

 

Jonathan Rupprecht

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