A Brief Background on the Brewing Drone Problem
As the drone industry is taking off, some individuals and groups have started using drones for malicious purposes around the globe. Many companies are watching the trend and are trying to get into the counter drone industry. They have introduced all sorts of drone guns, anti-UAS shotgun shells, attack birds, net cannons, lasers, missiles, radio signal jammers, radio spoofers, etc.
Table of Contents:
- Types of Counter Drone Technology
- Industries that are Trying to Get Ahead of the Situation
- Congress’ View on Drones
- Legal Issues Surrounding Counter Drone Technology
- Actual Text of White’s House NDAA C-UAS Proposal
Types of Counter Drone Technology
The counter drone technology is getting lumped all into one bucket but I think it is best broken up into two categories: (1) detectors and (2) defenders. Keep in mind that these terms are my own.
Some of what has been talked about as counter drone technology are not really counter technology but are just drone detectors. The systems can’t really do anything to STOP the drone, just tell you where the drone is and maybe the operator. Hopefully, police can locate the drone operator and get him to land the drone before anything happens.
- Radio wave receivers
- Audio sensors to “hear”
- Optical sensors to see
These aren’t really a problem legally. The next category is where things get legally complicated fast.
- Spoofers (for GPS signals)
- Sonic – Fox News has a article on how this technology could counter drones.
- Electromagnetic Pulse
- High Energy Microwave
- Irritated Property Owners with Shotguns
- Snaggers (a net carried under a drone, shot from an air cannon, or bolo/net shotgun shell projectile.)
- Attack Birds such as Eagles. – I’m sure PETA will love this one.
- Random Stuff: Spears, T-Shirts, Baseballs, Soccer Balls
Industries that are Trying to Get Ahead of the Situation
There are many industries that are very interested in using this counter drone technology:
- Defense Sector
- U.S. Government
- Private Security
- Sports Teams and Stadiums
- Amusement Parks
- Chemical Manufacturing
Congress is Starting to Pay Attention
The U.S. Congress is interested in the area and has directed the FAA in Section 2206 of the FESSA of 2016 to “establish a pilot program for airspace hazard mitigation at airports and other critical infrastructure using unmanned aircraft detection systems.” The FAA has since started doing a pathfinder program with some companies to use the technology at airports.
In December 2016, Congress passed the National Defense Authorization Act of 2017 (“NDAA”) which created a brand new section on unmanned aircraft in Title 10 of the United States Code and also directed the Secretary of Defense to “submit to the appropriate committees of Congress a report on the potential for cooperative development by the United States and Israel of a directed energy capability to defeat . . . unmanned aerial vehicles, . . . that threaten the United States, deployed forces of the United States, or Israel.”
Section 1697 of the NDAA amended Title 10 of the United States Code by adding the following:
“§ 130i. Protection of certain facilities and assets from unmanned aircraft
“(a) Authority.—Notwithstanding any provision of title 18, the Secretary of Defense may take, and may authorize the armed forces to take, such actions described in subsection (b)(1) that are necessary to mitigate the threat (as defined by the Secretary of Defense, in consultation with the Secretary of Transportation) that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset.
“(b) Actions Described.—
“(A) Detect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent, including by means of intercept or other access of a wire, oral, or electronic communication used to control the unmanned aircraft system or unmanned aircraft.
“(B) Warn the operator of the unmanned aircraft system or unmanned aircraft, including by passive or active, and direct or indirect physical, electronic, radio, and electromagnetic means.
“(C) Disrupt control of the unmanned aircraft system or unmanned aircraft, without prior consent, including by disabling the unmanned aircraft system or unmanned aircraft by intercepting, interfering, or causing interference with wire, oral, electronic, or radio communications used to control the unmanned aircraft system or unmanned aircraft.
“(D) Seize or exercise control of the unmanned aircraft system or unmanned aircraft.
“(E) Seize or otherwise confiscate the unmanned aircraft system or unmanned aircraft.
“(F) Use reasonable force to disable, damage, or destroy the unmanned aircraft system or unmanned aircraft.
“(2) The Secretary of Defense shall develop the actions described in paragraph (1) in coordination with the Secretary of Transportation.
“(c) Forfeiture.—Any unmanned aircraft system or unmanned aircraft described in subsection (a) that is seized by the Secretary of Defense is subject to forfeiture to the United States.
“(d) Regulations.—The Secretary of Defense and the Secretary of Transportation may prescribe regulations and shall issue guidance in the respective areas of each Secretary to carry out this section.
“(A) is identified by the Secretary of Defense for purposes of this section;
“(B) is located in the United States (including the territories and possessions of the United States); and
“(i) the nuclear deterrence mission of the Department of Defense including with respect to nuclear command and control, integrated tactical warning and attack assessment, and continuity of government;
“(ii) the missile defense mission of the Department; or
“(iii) the nationalsecurity space mission of the Department.
“(2) The terms ‘unmanned aircraft’ and ‘unmanned aircraft system’ have the meanings given those terms in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).”.
The NDAA is a good first start but itself has flaws as pointed out in an article in Defense News, “[T]he NDAA definition of “covered facility or asset” is limited to those relating to the U.S. nuclear deterrent, U.S. missile defense, or the military space mission. While those are critical places to secure from drones, the authority to prevent such incursions should really apply to all military facilities located within the United States – that should be a first-order item for the House and Senate to address in the 115th Congress at the earliest opportunity.” This article also brought out a good point about counter drone technology needing to be cost effective.
The House version of the proposed NDAA of 2018 seeks to expand the use of force to those locations that are “part of a Major Range and Test Facility Base (as defined in section 196(i) of this title).”
However, Many Older Laws are Still in Place
Great – so the military can go Rambo on the drones. But what about everyone else?
Here is the problem, there are a bunch of laws already in place which currently prohibits this counter drone technology from being used or creates liability when they are used. Also, there are currently no bills seeking to change the federal statutes or any regulatory rulemaking being initiated by federal agencies to change the regulations. We have the Safety Act which can limit some liability, but it does NOT solve the situation.
The New York Times reported that the Trump Administration has proposed some language to make much of the counter UAS technology decriminalized. The actual text of the proposal is at the end of the article.
Legal Issues Surrounding Counter Drone Technology
1. Communications Act of 1934
There are three sections that are problematic:
47 U.S.C Section 301 – Requires persons operating or using radio transmitters to be licensed or authorized under the Commission’s rules (47 U.S.C. § 301). So just to operate the jammer, it needs to be certified.
47 U.S.C. Section 302(b) – Prohibits the manufacture, importation, marketing, sale or operation of unlicensed jammers within the United States (47 U.S.C. § 302a(b)) ( Only exception is to the U.S. Government 302a(c)). Yes, you read that right. Depending on how you market counter drone measures, you could be doing something illegal! This section also prohibits the testing R & D of drone jammers on your own property. FCC laid the smack down on a Chinese company in 2014 with a fine of $34.9 million! Yes, you guessed it, the FCC order cited 302(b). Hobbyking found out that the FCC is very serious about the marketing of unlicensed radio transmitters when they received this FCC order.
47 U.S.C. Section 333 – Prohibits willful or malicious interference with the radio communications of any station licensed or authorized under the Act or operated by the U.S. Government (47 U.S.C. § 333). I think Amazon is wisely planning for the future when they filed for a technology patent designed to allow their drones to fly if jamming is taking place. The jamming could be illegal or legal but we know it will be happening in the future. People will take things into their own hands and might start creating illegal drone jamming equipment as a means of “self-help.”
Just on an interesting follow up point, all sorts of things operate on the frequencies you are jamming. Let’s say 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.”
2. FCC Regulations
47 C.F.R. Section 2.803 – prohibits the manufacture, importation, marketing, sale or operation of these devices within the United States (47 C.F.R. § 2.803) Section 2.807 – provides for certain limited exceptions, such as the sale to U.S. government users (47 C.F.R. § 2.807) The FCC regulations are basically echoing the federal statutes that were created. This means Congress has to either make some exceptions to the Communications Act of 1934 AND nullify or amend these regulations OR just change the underlying statute and leave it to the FCC to start the rulemaking process to repeal this regulation.
3. The United States Criminal Code
18 U.S.C. Section 1362 – prohibits willful or malicious interference to U.S. government communications; subjects the operator to possible fines, imprisonment, or both. This could be used to apply to GPS jamming.
18 U.S.C. Section 1367(a) – prohibits intentional or malicious interference to satellite communications; subjects the operator to possible fines, imprisonment, or both.This could also be used to apply to GPS jamming.
18 U.S.C. Section 32 – Destruction of aircraft or aircraft facilities: “(a) Whoever willfully— (1) sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce;” . . . “shall be fined under this title or imprisoned not more than twenty years or both.” This applies to the lasers, shotguns, and my all time favorite, Russian spear thrower.
18 U.S.C. Section 2511 says, “ (1) Except as otherwise specifically provided in this chapter any person who— (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication[.]”
18 U.S.C. Section 1030 says, “(a) Whoever . . . (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . (C) information from any protected computer[.]” This one applies to the hackers.
4. Drone Jamming Can Affect More than the Drone
On October 26, 2016, the FAA sent out a letter to airports because “Recently, technology vendors contacted several U.S. airports, proposing to conduct demonstrations and evaluations of their UAS detection and counter measure systems at those airports. In some cases, the airport sponsors did not coordinate these assessments and demonstrations with the FAA in advance. It is important that federally obligated airports understand that the FAA has not authorized any UAS detection or counter measure assessments at any airports other than those participating in the FAA’s UAS detection program through a CRDA, and airports allowing such evaluations could be in violation of their grant assurances.” The letter went on to say, “Unauthorized UAS detection and counter measure deployments can create a host of problems, such as electromagnetic and Radio Frequency (RF) interference affecting safety of flight and air traffic management issues.”
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 a
• 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 ofthe 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 an
airport is the number ofsensors needed to achieve the desired airspace coverage. Because
the coverage volume depends on the unique characteristics and requirements of each airport
and the type of system, the number of sensors will vary. The coverage distance for many
types of detection technologies also constrains the efficacy ofsuch systems in identifying the
locations of UAS.
• Deploying assets in an environment owned by many entities could also make UAS detection
systems a challenging solution to acquire and deploy. Overall, costs are prohibitive where
higher levels of redundant coverage are required. An additional and critical component of
this finding is that technology rapidly becomes obsolete upon installation as UAS technology
is rapidly changing.
Additionally, the American Radio Relay League sent the FCC a warning letter about video transmitters being sold that operate between 1,010- 1,280 MHz beyond legal limits (~ 6 times the legal limit). The letter said, ““Of most concern is the capability of the devices to cripple the operation of the [air traffic control] secondary target/transponder systems[.]” The problem is that one of the frequencies listed can be legally used for amateur radio operations but the rest cannot. This means someone can purchase this equipment and operate it on frequencies not allowed. What operates in that range?
- TACAN /DME
- Air Traffic Control Radar Beacons
- Mode S for Transponders
- Air Route Surveillance Radars
- GLONASS L1
This adds another layer of difficulty to the mix as you might need to jam frequencies that are being used by other industries because some drone transmitters allow for it.
So jamming drones near airports can cause problems as well as jamming certain frequencies that certain radio transmitters can use that aviation also uses.
Knowing this, now we have another criminal statute in play! 49 U.S.C Section 46308 says, “A person shall be fined under title 18, imprisoned for not more than 5 years, or both, if the person—(1) with intent to interfere with air navigation in the United States, exhibits in the United States a light or signal at a place or in a way likely to be mistaken for a true light or signal established under this part or for a true light or signal used at an air navigation facility; . . (3) knowingly interferes with the operation of a true light or signal.”
5. State Law
The states have also made some of these counter drone technologies illegal! States have anti-hacking laws, anti-messing with aircraft laws, etc. Worse yet, these laws are all over the place with how broad they are, their safe harbors/exemptions, and their punishments. Basically, what is said in this article x 50 states.
6. Civil Lawsuit for Damages
If you violated one of the above crimes, you have potential liability from a civil lawsuit. You can get sued for negligence if you are the proximate cause of an injury by breaching a duty. Your duty is to not commit crimes. (duh) The legal term is negligence per se. So if someone gets hurt because you committed that crime, and they were in the protected class of people the criminal statute was attempting to protect (great point to argue over in the lawsuit), and you were the proximate cause of the injury, you can be liable.
And remember the guys listed above who are interested in this? (Amusement parks, airports, chemical plants, utilities, etc.) They are prime targets for lawsuits and might get listed as a named defendant in a lawsuit.
7. Aviation Statutes & Regulations
If the drone operator was required to obtain an authorization and waiver to fly at that location and you take control of the drone, now YOU have to have a waiver and/or authorizations to fly in that area!
As you can see, there are many legal issues surrounding this area which makes the creation, testing, marketing, and using of counter drone technology problematic.
There are ways that the liability can be lessened, but it cannot be completely removed. Congress and the federal agencies are going to need to start creating regulations that allow for the operation of the equipment in the U.S. Additionally, there is going to be a need for some preemptive language in a future bill that can unclutter this area regarding state laws because I think it is not feasible to have all 50 states attempt to modify their respective laws to accommodate counter drone technology.
Are these all the laws? I don’t know. I stopped looking because I just kept finding an increasing amount of legal issues.
I fear, however, that Congress will not move on this quickly, and neither will the agencies. I believe what laws and regulations do come out will most likely be, as the old legal adage, written in blood.
Actual Text of White’s House NDAA C-UAS Proposal
Update: On August 7, 2017, it was reported by the Military Times that “The Pentagon has signed off on a new policy that will allow military bases to shoot down private or commercial drones that are deemed a threat[.]” This is what was authorized in the National Defense Authorization Act of 2017 which was passed in December 2016. See below for my discussion on it. The House version of the proposed NDAA of 2018 seeks to expand the use of force to those locations that are “part of a Major Range and Test Facility Base (as defined in section 196(i) of this title).”
SEC. __. OFFICIAL ACTIONS TO ADDRESS THREATS POSED BY UNMANNED AIRCRAFT SYSTEMS TO PUBLIC SAFETY OR HOMELAND SECURITY.
(a) AUTHORITY.—Notwithstanding any provision of title 18, United States Code, the head of an Executive department or agency, while respecting privacy, civil rights, and civil liberties, including with regard to the testing of any equipment and the interception or acquisition of communications, may take, and may authorize a covered person to take, the actions described in subsection (b), to the extent otherwise in accordance with law.
(b) ACTIONS DESCRIBED.—The actions described in this subsection are as follows:
(1) Detect, identify, monitor, or track, without prior consent, an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo, to evaluate whether it poses a threat to the safety or security of a covered facility, location, or installation or a covered operation, including by means of interception of or other access to wire, oral, electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo.
(2) Redirect, disable, disrupt control of, exercise control of, seize, or confiscate, without prior consent, an unmanned aircraft system, unmanned aircraft,
or unmanned aircraft’s attached system, payload, or cargo that poses a threat to the safety or security of a covered facility, location, or installation or a covered operation, including by intercepting, substituting, or disrupting wire, oral, electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo.
(3) Use reasonable force to disable, disrupt, damage, or destroy an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that poses a threat to the safety or security of a covered facility, location, or installation or a covered operation.
(4) Conduct research, testing, training on, and evaluation of any equipment, including any electronic equipment, to determine its capability and utility to enable any of the actions described in paragraphs (1) through (3).
(c) FORFEITURE.—An unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that is disabled, disrupted, seized, controlled, confiscated, damaged, or destroyed pursuant to an action described in subsection (b) is subject to forfeiture to the United States.
(d) GOVERNMENT-WIDE POLICY.—The actions described in subsections (b) and (c) may only be taken following the issuance of Federal Government-wide policy prescribing roles and responsibilities for implementing this section. The Federal Government-wide policy shall be developed in consultation with appropriate departments and agencies, including the Department of Transportation to ensure the safety and efficiency of the National Airspace System, and shall—
(1) respect privacy, civil rights, and civil liberties, including with regard tothe testing of any equipment and the interception or acquisition of communications, by, among other things, ensuring that information is intercepted, acquired, accessed, or retained pursuant to subsections (b) only where and for so long as is necessary to support one or more of the department’s or agency’s authorized functions and is accessible only to covered persons with a need to know the information;
(2) prescribe roles and processes, as appropriate, to ensure that departments and agencies take the actions described in subsection (b) in compliance with applicable law and regulation regarding the management of the radio frequency spectrum;
(3) consider each department’s and agency’s responsibilities for the safety or security of its facilities, locations, installations, and operations in the United States; and
(4) develop standards and procedures for heads of departments and agencies to designate a covered facility, location, or installation, a covered operation, or a covered person, which shall ensure that only individuals with appropriate training and acting subject to Federal Government oversight are designated as covered persons.
(1) REGULATIONS; POLICIES, PROCEDURES, OR PLANS.—Consistent with any limitations or specifications in the Federal Government-wide policy issued pursuant to subsection (d), the head of a department or agency—
(A) may prescribe regulations to carry out this section; and
(B) shall issue policies, procedures, or plans to carry out this section.
(2) COORDINATION.—Regulations, policies, procedures, or plans issued under this subsection shall develop the actions in subsection (b) in coordination with the Secretary of Transportation.
(3) PRIVACY REVIEW.—Any regulations, policies, procedures, or plans issued pursuant to this section that would result in the monitoring, interception, or other access to wire, oral, electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo shall be reviewed consistent with section 522 of the Consolidated Appropriations Act, 2005 (42 U.S.C. 2000ee-2), to ensure that the regulations, policies, procedures, or plans appropriately protect privacy and civil liberties.
(f) JURISDICTION.—Notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim, including for money damages, against a covered person arising from any authorized action described in subsection (b).
(g) RELATIONSHIP TO OTHER LAWS.—Nothing in this section shall be construed to—
(1) restrict the authority of the United States Government, a member of the Armed Forces, or a Federal officer, employee, agent, or contractor from performing any action described in subsection (b) or (c) that is in accordance with law;
(2) affect the exercise of authority granted by section 130i of title 10, United States Code, and section 4510 of the Atomic Energy Defense Act (50 U.S.C. 2661); or
(3) restrict or limit the authority of the Federal Aviation Administration under 18 title 49, United States Code, to manage the safe and efficient use of the National Airspace System.
(h) DISCLOSURE.—Information pertaining to the technology used pursuant to this section, and any regulations, policies, procedures, and plans issued under this section, shall be exempt from disclosure under section 552(b)(3) of title 5, United States Code, and exempt from disclosure under any State or local law requiring the disclosure of information.
(i) DEFINITIONS.—In this section:
(1) The term “covered facility, location, or installation” means any non- mobile asset in the United States that is designated by the head of a department or agency in accordance with standards and procedures established under subsection (d).
(2) The term “covered operation” means—
(A) any operation that is conducted in the United States by a member of the Armed Forces or a Federal officer, employee, agent, or contractor, that is important to public safety, law enforcement, or national or homeland security, and is designated by the head of a department or agency, consistent with the Federal Government-wide policy issued pursuant to subsection (d); and
(B) may include, but is not limited to, search and rescue operations; medical evacuations; wildland firefighting; patrol and detection monitoring of the United States border; a National Security Special Event or Special Event Assessment Ratings event; a fugitive apprehension operation or law enforcement investigation; a prisoner detention, correctional, or related operation; securing an authorized vessel, whether moored or underway; authorized protection of a person; transportation of special nuclear materials; or a security, emergency response, or military training, testing, or operation.
(3) The term “covered person” means any member of the Armed Forces, a Federal officer, employee, agent, or contractor, or any other individual that is designated by the head of a department or agency in accordance with standards and procedures established under subsection (d), acting within their officially designated capacity.
(4) The terms “intercept” and “wire, oral, electronic, or radio communications” have the meaning given those terms in section 2510 of title 18.
(5) The terms “unmanned aircraft” and “unmanned aircraft system” have the meaning given those terms in section 331 of the FAA Modernization and Reform Act 7 of 2012 (49 U.S.C. 40101 note).
(6) The term “United States” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any possessions, territorial seas, or navigable waters of the United States.
(j) SUNSET.—This section shall cease to have effect on December 31, 2022.
Section-by-Section Analysis of Proposed Legislation Regarding Official Actions to Address
Threats Posed by Unmanned Aircraft Systems to Public Safety or Homeland Security
Unmanned aircraft systems (UAS) are commercially available, challenging to
detect and mitigate, and capable of carrying harmful payloads and performing
surveillance while evading traditional ground security measures. However, some
of the most promising technical countermeasures for detecting and mitigating UAS
may be construed to be illegal under certain laws that were passed when UAS were
unforeseen. These laws include statutes governing electronic communications,
access to protected computers, and interference with civil aircraft.
Potential liability under such laws restricts innovation, evaluation, and operational
use of technical countermeasures that can address the unique public safety and
homeland security threats posed by UAS while minimizing collateral risk. The
proposed legislation provides a savings clause under title 18, United States Code,
for authorized development or use of such countermeasures.
This legislation provides that development or use of countermeasures against UAS
must be pursuant to a coordinated, government-wide policy. A coordinated
approach is critical to ensure that development and use of technical
countermeasures for detecting and mitigating UAS is consistent with the safety and
efficiency of the National Airspace System (NAS), the protection of privacy, civil
rights, and civil liberties, and other government-wide equities. Indeed, multiple
departments and agencies have responsibility for the safety or security of facilities,
locations, installations, and operations that may be vulnerable to threats posed by
UAS, including the Department of Homeland Security, the Department of
Transportation, the Department of Justice, the Department of Defense, the
Department of Energy, the Department of Agriculture, the Department of the
Interior, and the Office of the Director of National Intelligence. Multiple
departments and agencies also perform important operations that may be vulnerable
to threats posed by UAS, including but not limited to: search and rescue operations;
medical evacuations; wildland firefighting; patrol and detection monitoring of the
United States border; National Security Special Events and Special Event
Assessment Ratings events; fugitive apprehension operations and law enforcement
investigations; prisoner detention, correctional, and related operations; securing
authorized vessels, whether moored or underway; authorized protection of a person
or persons; transportation of special nuclear materials; and security, emergency
response, or military training and operations. The proposed legislation helps to
ensure that authorized members of the Armed Forces and Federal officers,
employees, contractors, and other appropriate persons designated by the heads of
the executive department and agencies consistent with the requirements of the
government-wide policy required by the proposed legislation will not face penalties
for protecting those equities in a way that is consistent with other applicable law,
including the U.S. Constitution.
Subsection (a) sets forth the savings clause discussed above. Though many
provisions in Title 18 may conflict with authorized Counter-UAS activities, certain
statutes are especially problematic. For example, sections 2510–2522 of title 18,
United States Code (the Wiretap Act), among other things, subject any person who
intentionally intercepts the “contents” of electronic communications to fines,
imprisonment, and/or civil liability, and sections 3121–3127 of title 18, United
States Code (the Pen/Trap Statute), among other things, generally prohibit the
installation or use of a device to collect “non-content” information of electronic
communications. In addition, section 1030 of title 18, United States Code (the
Computer Fraud and Abuse Act) prohibits unauthorized access to and use of
“protected computers.” These statutes might be construed to prohibit access to or
interception of the telemetry, signaling information, or other communications of
UAS. Furthermore, any attempt to interfere with the flight of UAS that pose a
threat to covered facilities, locations and installations or covered operations may
conflict with section 32 of title 18, United States Code (the Aircraft Sabotage Act),
which among other things, imposes fines and criminal penalties on anyone who
“damages, destroys, disables, or wrecks any aircraft in the special aircraft
jurisdiction of the United States.” In the event of unanticipated conflicts with other
statutes, and in order to avoid criminalizing critically important activities by
government officials that are consistent with the U.S. Constitution, the savings
clause also refers generally to “any provision of title 18, United States Code.”
Congress has previously recognized the importance of ensuring that federal
criminal laws in Title 18 do not inadvertently blunt the development or use of UAS
countermeasures. The National Defense Authorization Act (NDAA) for Fiscal Year
(FY) 2017 contains two sections (Sec. 1697—codified at section 130i of title 10,
U.S. Code—and Sec. 3112) authorizing the Department of Defense, and the
Department of Energy, respectively, to protect certain facilities and assets from
threats posed by UAS. Both sections authorize such activities “[n]otwithstanding
any provision of title 18.”
Subsection (b) describes the specific actions referenced in subsection (a), which
relate to the UAS context. The proposed legislation would generally allow
research, testing, training on, and evaluating technical means for countering UAS,
as well as the use of technical means to detect, identify, monitor, and track a UAS
to evaluate whether it poses a threat to the safety or security of covered facilities,
locations, and installations or covered operations. With respect to the use of
technical means to re-direct, disable, disrupt control of, exercise control of, seize,
or confiscate UAS, the proposed legislation would allow such actions in response
to a UAS posing a threat to the safety or security of covered facilities, locations,
and installations or covered operations. Subsection (b)(3) of the proposed
legislation would allow the use of reasonable force to disable, disrupt, damage or
destroy a UAS posing a threat to the safety or security of covered facilities,
locations, and installations or covered operations.
Subsection (c) authorizes, but does not require, civil forfeiture of UAS that are
subject to authorized actions described in subsection (b).
Subsection (d) provides that the actions in subsections (b) and (c) may be taken
only after the issuance of government-wide policy prescribing roles and
responsibilities for implementing this section. That policy would be developed in
consultation with appropriate departments and agencies, including the Secretary of
Transportation to ensure the safety and efficiency of the NAS. Requiring the
development of government-wide policy ensures that departments and agencies
execute UAS countermeasures in a coordinated and effective manner, and that such
activities are subject to appropriate oversight and control. A whole-of-government framework also protects the integrity of the NAS, while permitting departments and
agencies to defend covered facilities and operations from malicious uses of UAS.
The proposed legislation requires the government-wide policy to (1) respect
privacy, civil rights and civil liberties; (2) prescribe roles and processes, as
appropriate, to ensure compliance with applicable law and regulations concerning
the management of the radio frequency spectrum; (3) consider each Federal
department and agency’s responsibilities for the safety or security of its facilities
and operations; and (4) develop standards and procedures with respect to
designations of covered facilities, locations, installations, covered operations, and
covered persons, including by requiring that only that only individuals with
appropriate training and acting subject to Federal Government oversight may be
designated as such.
Subsection (e) provides that departments and agencies must issue policies,
procedures, or plans to carry out this section, consistent with any limitations or
specifications in the government-wide policy. Departments and agencies may also
issue regulations to carry out this section. Subsection (e)(2) provides that
departments and agencies must develop the actions issued under this subsection in
coordination with the Secretary of Transportation. This provision intends to foster
airspace safety by ensuring that departments and agencies engage with the
Secretary of Transportation early on to identify and mitigate any potential collateral
impacts on the NAS. In the NDAA for FY 2017, Congress similarly recognized the
importance of preserving a coordinating role for the Secretary of Transportation in
the development of the actions for countering UAS. The term “coordination” in
subsection (e)(2) means that the heads of departments and agencies will seek the
views, information, and advice of the Secretary of Transportation concerning any
potential effects on the NAS as department and agencies develop the types of
actions to be taken and the circumstances of execution under this provision. The
Secretary of Transportation will provide such views, information, and advice in a
reasonably prompt manner. If the Secretary of Transportation notifies the head of
a department or agency that taking the proposed actions would affect aviation safety
or NAS operations, the head of the department or agency concerned will work
collaboratively with the Secretary of Transportation to consider proposed actions
to mitigate or otherwise address effects on aviation safety, air navigation services,
and NAS efficiency—consistent with national or homeland security and law
enforcement requirements—prior to finalizing the types of actions authorized to be
taken under this provision.
Subsection (e)(3) requires internal review of regulations, policies, procedures, or
plans that would result in the monitoring, interception or other access to wire or
Subsection (f) provides that no court shall have jurisdiction to hear causes or claims,
including for money damages, against a federal officer, employee, agent or
contractor arising from any authorized actions described in subsections (b). This
provision serves to protect individuals taking authorized actions described in
subsections (b) from damages claims and official-capacity claims.
Subsection (g) clarifies that the proposed legislation does not affect Federal
agencies’ authority to continue testing and/or using technical means for countering
UAS that comport with title 18, United States Code, and other applicable law,
including the aforementioned sections of the NDAA for FY 2017. In addition, the
proposed legislation clarifies that it does not restrict or limit the authority of the
Federal Aviation Administration, which remains the exclusive Federal agency with
authority over the nation’s airspace and authority to manage the safe and efficient
use of the NAS.
Subsection (h) provides exemptions from disclosure under State and Federal law
for information relating to the technology used pursuant to the proposed legislation,
and specific policies, procedures, or plans issued thereunder.
Subsection (i) clarifies that “unmanned aircraft” and “unmanned aircraft system”
have the meanings given those terms by the FAA Modernization and Reform Act
of 2012. The term “covered facilities, locations and installations” is defined to
mean non-mobile assets in the United States that are designated by the respective
agency head pursuant to standards and procedures developed in government-wide
policy. The term “covered person” is defined to mean any member of the Armed
Forces, a Federal officer, employee, agent, or contractor, or any other individual
that is designated by the respective department or agency head in accordance with
the standards and procedures established in government-wide policy. The term
“covered operations” is defined to mean governmental operations that are
determined by an agency head, consistent with government-wide policy, to be
important to public safety, law enforcement, or national or homeland security.
Subjection (j) provides that the legislation ceases to have effect on December 31,