Most people will be surprised to find out that they are breaking a number of U.S. laws when trying to prevent a drone from invading their personal privacy or the privacy of their organization. The policy and laws have not kept up with technology advances in the drone space, but they are changing slowly. This blog provides a snapshot of where U.S. laws stand today regarding counter-drone operations. Select organizations within the federal government have been the first to obtain authority for drone mitigation, but this authority has not yet been granted at the state or local law enforcement level. This is a deliberate crawl, walk, run policy that is trying to balance personal freedoms against security interests while allowing full transparency of law enforcement policies.
Prior to 2018, no one could shoot down a drone, seize control of the aircraft, redirect its flight path, or intercept and alter its signal from the flight controller. Prior to 2018, only the Department of Defense (DoD) and the Department of Energy (DOE) had any authority to prevent the operation of drones around their facilities (military bases and nuclear sites). They were given this authority under the 2017 National Defense Authorization Act.
The first primary issue is that the FAA has legally classified drones as “aircraft”. This means that any protections aircraft have, drones have as well. The second big issue is that current U.S. laws do not address technological advances in the drone sector and all active Radio Frequency (RF) countermeasures are limited by existing telecommunication statutes. Depending on your actions, the laws you may be breaking by interfering with a drone flight may include:
- The Wiretap Act (18 USC 2510-2522)
- Pen Registers and Trap and Trace Statute (18 USC 3121-3127)
- Computer Fraud and Abuse (18 USC 1030)
- Willful or Malicious Telecommunication Interference (47 USC 333)
- Aircraft Sabotage Act (18 USC 32)
- Aircraft Piracy Act (49 USC 46502)
- Fourth Amendment – Unreasonable Search and Seizure
Despite these current laws, there are a number of counter-drone system manufacturers that tout their ability to “bring down a drone.” Clearly, these actions break many laws.
Detection, tracking, and monitoring are the only legally permitted actions of a counter-drone system operating within the U.S. by any organization below the federal level. Even at the federal level, only select agencies have been given additional authority.
With the Preventing Emerging Threats Act of 2018, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) are also now authorized to mitigate the threat a drone poses to the safety or security of facilities or assets. DHS or DOJ may take actions to:
- detect, identify, monitor, and track the drone, without prior consent;
- warn the drone's operator;
- disrupt control of the drone, without prior consent;
- seize or exercise control of the drone;
- confiscate the drone; or
- use reasonable force to disable, damage, or destroy the drone.
Any drone seized by the DHS or DOJ is subject to forfeiture to the United States.
These authorities also extend to the Federal Bureau of Prisons, the Secret Service, and Customs and Border Protection since these agencies are contained within either the DHS or DOJ organizational structure. Additional counter-drone activity and research & development is also on the horizon since this act also compels the DHS to evaluate the threat from drones to U.S. critical infrastructure and to domestic large hub airports.
Unfortunately, State, Local, Tribal, and Territorial Law Enforcement Agencies still have no authority to counter a drone threat because the law specifically prohibits the DOJ or DHS from sharing this authority. About the only recourse for these local law enforcement agencies is to: detect the drone operation, identify the operator, require the operator to provide credentials, and report the activity to the FAA.
However, even with all these drone incidents that have been reported in the media and investigations that were conducted, overall drone prosecutions have been extremely rare. As a nation, we have only taken the initial steps toward a long-term vision of detecting and prosecuting illegal drone activity leading to a successful conviction. There are sure to be many test cases in the future to help us define national laws and policy for counter-drone operations in the National Air Space.
Our next post will focus on CUAS systems and techniques: Why is this hard, and what can go wrong?
To learn more about our counter-drone solutions, please reach out to us at: [email protected]