7 June 2018

America Is Not Ready for the Drone Threat

Jason Snead John-Michael Seibler

Drones are exploding in popularity, but if certain nefarious individuals have their way drones may soon be actually exploding. There is a real potential for enemies to use drones to harm Americans and damage our nation’s critical infrastructure. Already, overseas terrorists are deploying drone bombers. Domestic criminals are also using drones to commit an array of crimes, including ferrying contraband into prisons, with disastrous consequences. Earlier this month, an FBI official reported that a drone swarm disrupted a hostage rescue operation by driving agents from their observation post. Unfortunately, efforts to counter such threats are currently hamstrung by a series of federal laws that make it difficult, if not impossible, for law enforcement agencies to effectively interdict or engage a drone. The reason for this is because doing so would risk criminal prosecution for violating U.S. laws that make it a crime to damage or destroy an aircraft, hack a computer, or interfere with wireless communications, among others.

Sens. Ron Johnson (R-Wisc.), Claire McCaskill (D-Mo.), John Hoeven (R-N.D.), and Heidi Heitkamp (D-N.D.) recently introduced the “Preventing Emerging Threats Act of 2018.” Its objective: beginning to grant law enforcement agencies the necessary legal authorities to mitigate drone-related threats.

That cannot happen soon enough.

By all accounts, the criminal drone operations we have so far seen are the tip of the iceberg. Like the innovators and entrepreneurs who are constantly inventing new, lifesaving uses for small Unmanned Aircraft Systems ("UAS"), criminals are adapting drone technologies for their illicit aims.

Furthermore, just as market forces are driving exponential growth in lawful drone operations, so too are we likely to see more illegal UAS conduct.

That’s why the Heritage Foundation has written at length about the crucial need to develop a comprehensive legal framework for counter-drone operations, one that identifies and provides relief from the laws and regulations that today are hindering the development of counter-UAS (CUAS) platforms and capabilities.

Congress, it appears, also recognizes the urgency of this situation. In the National Defense Authorization Act (NDAA) of 2017, federal lawmakers gave the Departments of Defense and Energy limited CUAS authority to "[u]se reasonable force to disable, damage, or destroy" drones over select facilities, to, among other things, safeguard the nation's nuclear deterrent.

Congress then expanded that authority in the 2018 iteration of the NDAA, to give DOD additional authority to “[d]etect, identify, monitor, and track” UAS, as well as “[d]isrupt control of” or “seize” UAS.

To make that possible, Congress exempted DOD counter-drone operations from the aircraft piracy statute (49 U.S.C. § 46502), as well as the entirety of the U.S. criminal code (Title 18).

Such exemptions are needed in light of federal laws that currently prohibit specific technologies and tactics for hostile drone mitigation. For example, because the Federal Aviation Administration considers drones to be "aircraft" for purposes of federal law, without statutory exemptions, an attempt to seize control of or destroy a two-pound drone would—as bizarre as this may sound—run afoul of laws written to criminalize damaging or destroying manned aircraft.

The bipartisan Preventing Emerging Threats Act would extend counter-drone authority to the Department of Justice (DOJ) and the Department of Homeland Security (DHS).

The bill mirrors the approach taken with DOD in the NDAA—an approach advocated by Heritage analysts.

The bill would authorize DHS and DOJ personnel to identify, track, seize, seize control of, or “[u]se reasonable force” to disable or destroy drones in furtherance of their respective missions.

DHS, for example, would be empowered to protect the property and assets of the U.S. federal government. The Secret Service would be granted CUAS authority, as would the U.S. Coast Guard and Customs and Border Protection, a critical provision given the alarming uptick in the use of drones to ferry drugs into the U.S. from Mexico.

DOJ, meanwhile, could utilize CUAS equipment as part of its various missions. This equipment would include personnel protection to safeguard "Federal jurists, court officers, witnesses and other persons in the interests of justice." CUAS could also be used to halt illegal drone activity in the vicinity of federal prisons.

The bill would also authorize both DHS and DOJ to deploy CUAS equipment in the event of a national security threat, such as a potential terrorist attack undertaken via drone, or at National Special Security Events like presidential inaugurations or the Super Bowl.

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