Legal framework for counter-drone operations is critical to the future

They’re technically known as small unmanned aircraft systems, or “UAS,” but to most people, they’re simply drones. They’re proliferating in the U.S. and around the world, as entrepreneurs put them to increasingly complex and beneficial uses.

Unfortunately, terrorists and criminals are exploiting the technology, too. And U.S. law enforcement and national security agencies lack the ability, and clear legal authority, to effectively counter new airborne threats. Congress should act so that critical infrastructure, sensitive facilities, and the public are not left vulnerable.

{mosads}What do these threats look like?

In Iraq and Syria, ISIS fighters and other terrorist groups are using UAS as tools to gather intelligence and deliver explosives, and even to strike military targets. Last year, FBI Director Chris Wray testified in Congress that “the expectation is that [terrorist use of drones] is coming here, imminently.”

Other threats have already materialized in U.S. skies. International drug cartels have used “narco-drones” to ferry drugs across the southern border, over Border Patrol agents who are largely powerless to intervene.

Criminals have used UAS to fly contraband, including drugs, weapons, and other materials, into state and federal prisons. Just one incident at an Ohio correctional facility led to a 75-inmate brawl.

UAS are increasingly appearing in airspace where it is illegal to fly.

Last year, a UAS dropped leaflets — thankfully, nothing else — over crowds at two NFL stadiums. Pilot reports of drone sightings are increasing, and while collisions and near-collisions remain extremely rare, in just the last few months one low-flying helicopter in South Carolina crashed while evading a drone, and an Army Black Hawk collided with a drone while providing security for the U.N.

In 2015, one drunken federal employee crash-landed a drone on the White House lawn.

These incidents have revealed two things: public and private facilities are alarmingly vulnerable to reckless or hostile drones; and law enforcement and national security agencies face significant shortcomings in their capabilities to control access to sensitive airspace and interdict threatening drones.

Overcoming that deficiency will require the deployment of robust counter-UAS (CUAS) platforms designed to detect, track and identify hostile or threatening drones, and offer operators a range of countermeasures to interdict them. Several private sector firms are already developing these systems, including trained birds-of-prey; interceptor drones with nets; software designed to hack a drone and seize control of it; jamming devices meant to block control or navigation signals; and laser or projectile weapons to destroy threatening UAS.

U.S. law enforcement agencies will soon have the means to interdict UAS, but they lack clear legal authority to stop hostile drones from endangering the public.

In fact, only two agencies in the entire country — the Departments of Defense and Energy — have explicit authority to engage in CUAS operations, and even that authority is limited.

All other federal, state, and local law enforcement agencies are hamstrung by various federal laws that prohibit crucial CUAS functions.

For example, 18 U.S.C. § 32 makes it a felony to damage or destroy an aircraft and, according to the FAA, drones are “aircraft” for the purposes of federal law. Other laws prohibit the use of hacking and jamming tools, and seizing control of aircraft, among other obstacles.

Congress began to address this problem in the 2017 and 2018 National Defense Authorization Acts, by granting DOD and DOE certain statutory exemptions for CUAS activities.

Lawmakers should now take two further steps. First, they should extend CUAS authority to federal law enforcement agencies.

Second, officials should be given broader authority to engage in counter-drone operations to protect national security, safeguard manned aviation, support law enforcement activities, police the border, and further other critical federal missions.

This authority should be tied to the development of appropriate “rules of engagement” to ensure that CUAS platforms are used lawfully and consistently while minimizing the risk of collateral damage.

Simultaneously, Congress should lay the groundwork for state and local law enforcement officials to eventually adopt and use CUAS technologies. History and experience teach that local police, not federal officials, bear the brunt of law enforcement and public safety missions, even when terrorism strikes. 

Therefore, lawmakers should establish a pilot program to deputize officers from diverse state and local agencies to develop core competencies and best practices under federal supervision, with an eye toward eventual widespread adoption of CUAS. The Department of Homeland Security’s 287(g) immigration enforcement program provides a model.

These measures are just some of those that would establish a legal framework for counter-drone operations as a necessary step toward unlocking the potential benefits of UAS while safeguarding America’s skies. 

Jason Snead is a senior policy analyst at The Heritage Foundation. John-Michael Seibler is a legal fellow in Heritage’s Meese Center for Legal and Judicial Studies.