Counter-Drone Legislation Needs a Major Overhaul

Pressure is mounting in Congress to update legislation that guides the use of defensive systems that protect against aerial drones. At present, the legislative framework underpinning the use of these systems needs major revision because it was formulated at a time before the widespread proliferation of drone technology.

The Preventing Emerging Threats Act, the law providing the authority to stop dangerous or threatening drones in flight to a select group of federal agencies, was set to expire in October. Congress was faced with a choice of letting it expire, extending or “reauthorizing” the law as is or further limiting or expanding authorities to state, local, tribal and territorial governments.  Congress chose to extend the law until mid-December 2022, after the midterm elections.

The hope is that Congress in its lame duck session will tackle this mostly bipartisan security issue by the end of the year.

Restrictive rules governing drone defense

As a general rule, companies and government agencies can legally deploy systems designed to detect, track and identify drones and their operators as long as they are not decoding the communication between the drone and the remote, because doing so is considered a violation of the federal Wiretap Act.

Additionally, the law is restrictive concerning drone detection at airports, requiring that the systems be completely passive – they can emit no electronic output because that might interfere with airport operations. As a result, drone detection systems that use radar are forbidden at airports.

Also, with few exceptions, any technology that can read the serial number of a drone or can take complete control over a drone is illegal today in the U.S.

As for stopping a threatening drone once detected, many of the same technologies that detect drones, including Dedrone’s, can also integrate with another system to mitigate that threat, either by physically interfering with, hacking or jamming it.

But under current law, drones are considered aircraft, so U.S. law protects a drone at the same level as an airliner loaded with people. Consequently, only the Department of Justice, Department of Energy, Department of Defense and the Department of Homeland Security have authority to use technology to stop drones in flight. These agencies cannot delegate that authority to local or state law enforcement agencies.

A push for legislative changes

Fortunately, pressure is building to update current laws given the spread of drone technology, with the White House leading the way.

In April, the White House published a Domestic Counter-Unmanned Aircraft Systems National Action Plan urging Congress to expand mitigation authorities through a pilot program with state, local, tribal and territorial agencies. And in August, the White House sponsored the Advanced Air Mobility Summit, which included leaders from industry and government.

Current legislation lags behind technology and a change in the current laws is clearly needed. The suggestions proffered from the White House include:

  • Creation of a five-year pilot program for selected local law enforcement agency participants to perform drone mitigation activities.
  • Establishment of an authorized equipment list for authorities to use for drone detection and for drone mitigation so authorities know what they can and cannot use.
  • Authorization of critical infrastructure sites to invest in mitigation equipment to be installed onsite and used by those with authority to do so.
  • Creation of a national, federal database tracking drone incidents in order to better understand the threats pose.

The pilot program is the most intriguing of these suggestions. By allowing local agencies the authority to mitigate dangerous drones and offering guidance on approved technologies, law enforcement at all levels can get a better understanding of how to best use detection and mitigation technologies to protect their communities, increasing adoption rates overall.

With all this in mind, a next step could be a focus on passing a measure under consideration in the Senate called the Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act. In its current form, the act takes some cues from both earlier legislation and the White House’s action plan. It would extend authority to the TSA to protect transportation infrastructure from drone threats, which can cost airports, airlines and passengers dearly.

Drone threats aren’t going away. The FAA estimates that more than 2.3 million drones will be registered by 2024, to say nothing of the drones that go unregistered. The growth also means that the potential for someone or some group employing drones for nefarious purposes also is growing. Local authorities need to be ready — and Congress must act soon to increase the safety of our skies and the people and critical infrastructure below.

 

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