Growing interest in unmanned aerial vehicles (UAV or drone) has caused a surge in the creation of technologies and systems meant to disable or destroy them. The Cipher Brief spoke to Tyler Black and Sean McGowan of Thompson Coburn LLP about the legal and regulatory implications of these emerging anti-UAV technologies. They say the government will likely continue to pursue unsafe drone operators, but that the specifics as to how that will happen and who will be responsible will vary due to the complex intersection of the regulatory and legal frameworks.
The Cipher Brief: Concerns about malicious use of UAVs have been rising for some time. How has the fear of malicious drone use changed the regulatory environment in regards to UAVs?
Tyler Black & Sean McGowan: Halting inadvertant or malicious unmanned aerial vehicles operations, especially around airports, aircraft, or sensitive facilities, has become an important government focus during the general integration of UAV into the national airspace system. While the Federal Aviation Administration (FAA) did not specifically address anti-drone countermeasures in its 2015 small UAV notice of proposed rulemaking (NPRM), the FAA has begun to work with other agencies (such as the Department of Homeland Security) and companies in the private sector to develop technology that can effectively keep drones from causing a safety or security incident. After numerous major public (and, thankfully, harmless) drone incidents have occurred in sensitive areas, such as the White House and on approach paths to airports, it is clear that federal agencies, ranging from the U.S. Secret Service to the Federal Communications Commission (FCC) and FAA, are giving drones their full attention. This heightened awareness may also open the door for regulatory accommodation of employing more counter-UAV technology going forward.
TCB: Concerns about the malicious use of UAVs has prompted the creation of a variety of systems meant to disable or destroy UAVs that are acting in a hostile manner. Are there any legal or regulatory issues that may complicate the use of counter-UAV technology? If so, how is the regulatory environment changing in regards to the creation of these technologies?
TB & SM: Yes, there are legal and regulatory barriers to many systems designed to stop unmanned aircraft. What laws come into effect largely depends on the type of systems employed. Broadly speaking, there are three main approaches to defeat a drone in flight: (1) target the operator; (2) target the drone; and/or (3) target the communications or navigation technology used by the operator and the drone.
In the first scenario, a combination of visual spotting and electronic listening devices can be used to locate the operator, who can then be approached and compelled to land the drone. The FAA and Department of Homeland Security are experimenting with this approach in the form of CACI International Inc.’s SkyTracker technology, which can supposedly monitor drone radio signal activity around sensitive areas and help pinpoint an operator’s likely location. Other companies use specialized radar and video technology to identify aircraft from far away, giving people on the ground more time to track down the operator or employ other countermeasures.
In the second scenario, the drone itself is targeted in order to stop its flight. This can theoretically be accomplished using a wide variety of devices or methods, but each may have their own practical (or legal) downsides. Lasers and projectile devices, such as firearms or beanbag guns, may be able to knock a drone out of the sky but are fraught with dangers to people and property on the ground (giving rise to civil tort liability). They may also be illegal depending on state and local laws covering the use of guns outdoors. Federal criminal law may prohibit wilful causation of damage or disablement to an aircraft that endangers safe flight, depending on the circumstances. Water cannons may be an option, but they run into some of the same problems as above and have a limited range. Some entities are even experimenting with hawks and other birds of prey to keep drones away from sensitive locations, but that may not be a realistic widespread option and may harm the birds in the process.
In the final scenario, however, things are perhaps the murkiest. A number of companies are developing technology that interferes with the control and navigation signals a drone uses to fly. These methods may even allow a party to take over the drone and fly it to an area where it can be recovered and examined. This takedown strategy certainly has the advantage of not spraying the air with projectiles but likely runs afoul of several laws and FCC regulations.
Federal law (including the Communications Act of 1934, as amended) prohibits the marketing, sale, or use of a jammer designed to block, jam, or interfere with wireless communications, except in a limited number of authorized, official uses by the federal government. Frequency jamming by members of the public and local law enforcement is illegal under federal law. The FCC regulates the use of jamming devices that interfere with GPS, Wi-Fi, radio, and cell phone signals. Its enforcement bureau has actively pursued cases against dozens of individuals and entities for jamming over the last ten years. Recently, the FCC halted Battelle’s efforts to market its DroneDefender product (a point-and-shoot radio jammer), designed to defeat radio control signals between an operator and the drone, until the agency can further evaluate the matter. Some companies have claimed their jamming or takeover technology can be operated without interfering with other radio signals, so there may yet be a path forward using this type of technology. Other sections of the federal criminal code may still act to prohibit intentional or malicious interference with satellite (think GPS) or government communications.
As drones become more prevalent, agencies like the FAA, the FCC, and the Department of Justice may seek to reevaluate and reinterpret their regulations or enforcement guidelines to differentiate between accommodation of socially desirable anti-drone countermeasures and undesirable disruptive radiofrequency jamming. It is difficult to say at this point how or how quickly this reevaluation process may advance.
TCB: What is the role of government regulatory bodies in regards to the future of anti-UAV technologies? How do you see the legal aspects of the use of anti-UAV systems changing over time?
TB & SM: The FAA sees itself as having a safety mission, first and foremost. The stated mission of the Department of Transportation (DOT), of which the FAA is a part, is to “serve the United States by ensuring a fast, safe, efficient, accessible and convenient transportation system that meets U.S. vital national interests and enhances the quality of life of the American people, today and into the future.”
Where Congress does not provide a specific alternative, expect the DOT to continue this mission in the context of drones by regulating who can fly them, when and where they can operate, and for what purpose. Whether a government regulatory body will itself employ anti-UAV technology is unclear, but, historically, the FAA has looked to state and local law enforcement in the past to resolve immediate threats and harm posed by UAV operations. Since the FAA lacks an army of enforcement personnel to employ anti-UAV systems in the field, it is likely this trend will continue. The FAA has a heightened responsibility for safety around airports, where it is already testing some technology to identify and (if necessary) commandeer drones to keep them away from other aircraft.
Drone operation and counter-drone technologies sit at a fascinating nexus between aircraft safety and communications regulations, civil tort law, local ordinances, and criminal laws. Expect the government stakeholders to generally use their respective tools (civil enforcement actions, criminal prosecutions, etc.) to go after unsafe operators and meet their public missions while working together in accommodating reasonably safe technologies to counter drone operations. But, as usual, the devil will be in the details.
Sean McGowan is a partner at Thompson Coburn LLP and co-chair of the firm’s Unmanned Aircraft Systems practice. He counsels clients on compliance matters involving U.S. federal statutes and regulations that affect the transportation industry, including aviation, maritime, trucking, and rail. Sean received a B.A. in Political Science from George Washington University and a J.D. from Catholic University of America Columbus School of Law.
