Tuesday, October 27, 2020

The Department of Justice Forecasts an Increase in Counter Unmanned Aircraft Systems (C-UAS) Protection Activities and Criminal Enforcement Actions

In a press release dated October 13, 2020, the Department of Justice (“DOJ”) announced the protection activities undertaken by the Federal Bureau of Investigation (“FBI”) to counter the threat posed by Unmanned Aircraft Systems (“UAS” or “drones”) at certain National Special Security Events (“NSSE”) (see P.L. 106-544, Sec. 3. 114 Stat. 2716) , Special Events Assessment Rating (“SEAR”) events, and select mass gatherings throughout the country over the past fiscal year.  (An NSSE is a major federal government or public event designated by the Presidentor his representative, the Secretary of the Department of Homeland Security (DHS) that is considered to be nationally significant as designated event that  may be the target of domestic / international terrorist activity.  SEAR events are voluntarily submitted special events, which are sent to the Department of Homeland Security’s (DHS) Office of Operations Coordination (OPS) by state, local, and federal officials for a risk assessment. Examples of submitted events have included the Super Bowl, Indianapolis 500, and the Kentucky Derby.)

The DOJ press release indicates that the agency and the FBI are publicizing protection activities in an effort to deter careless and criminal UAS operators in light of an anticipated increase in enforcement activity in response to the misuse of UAS. 

The DOJ press release states that the Preventing Emerging Threats Act of 2018 (codified at 6 U.S.C. § 124n) provides DOJ a tailored grant of authority for authorized DOJ components such as the FBI (and six other bureaus  in the DOJ) to take appropriate and lawful action against unmanned aircraft or unmanned aircraft systems that threaten the safety and security of the public, covered facilities and assets, and DOJ missions, consistent with the Constitution, applicable federal laws and regulations, and department policy. (The United States Code at 49 U.S.C. § 44801(5) defines the term "counter-UAS system" as a system or device capable of lawfully and safely disabling, disrupting, or seizing control of an unmanned aircraft or unmanned aircraft system.)

DOJ indicates that from Oct. 1, 2019, to Sept. 30, 2020, the FBI has provided counter-UAS support at dozens of events, including national level sporting events such as Super Bowl LIV in Miami, the 2019 World Series, and the 2020 Rose Bowl Game, as well as at other major events that draw large crowds like Washington, D.C.’s A Capitol Fourth and New York City’s New Year’s celebration.  During this period, the FBI has detected over 200 UAS unlawfully flying in national security airspace restricted by the Administrator of the Federal Aviation Administration at such events, and has taken corrective action. 

Operators who violate the national security-related flight restrictions put in place to protect these events risk facing criminal charges.  See  49 U.S.C. § 46307, which enforces 49 U.S.C. § 40103 (b) (3). 

The full DOJ press release can be viewed here.

For more information contact Robert E. Kelly at Kellylawuas@gmail.com

Wednesday, September 16, 2020

Federal Multi-Agency Advisory on the Application of Federal Laws to the Acquisition and Use of of Technology to Detect and Mitigate Counter-UAS Systems


On August 17, 2020, The Federal Aviation Administration (FAA), Department of Justice (DOJ), Federal Communications Commission (FCC), and Department of Homeland Security (DHS) issued an advisory guidance document (the “Advisory”) to assist non-federal public and private entities to better understand the federal laws and regulations that may apply to the use of technical tools, systems, and capabilities to detect and mitigate Unmanned Aircraft Systems (UAS). (The Advisory does not use the specific term; however,  the FAA uses the term “counter-UAS” or “C-UAS” for UAS  countermeasure or mitigation technologies.  The United States Code at 49 U.S.C. § 44801(5) defines the term "counter-UAS system" as a system or device capable of lawfully and safely disabling, disrupting, or seizing control of an unmanned aircraft or unmanned aircraft system.)

The Advisory indicates that it is intended to provide an overview of various provisions of the U.S. criminal code enforced by DOJ, as well as federal laws and regulations related to aviation safety and efficiency, transportation and airport security, and the radiofrequency spectrum administered respectively by the FAA, DHS, and FCC, with respect to Counter-UAS systems.

Specifically, the Advisory states that it addresses two categories of federal laws that may apply to UAS detection and mitigation capabilities: (1) various provisions of the U.S. criminal code enforced by DOJ; and (2) federal laws and regulations administered by the FAA, DHS, and the FCC. The Advisory is careful to state that it does not address state and local laws, which UAS detection and mitigation capabilities may also implicate. Neither does it cover potential civil liability flowing from the use of UAS detection and mitigation technologies (e.g., the potential liability from causing physical damage to persons or property as a result of mitigating a UAS threat, or civil liability and recovery for an unlawful interception of wire, oral, or electronic communications under 18 U.S.C. § 2520).

The timing of the release of the Advisory is not coincidental.  The Advisory press releases states that “As the number of drones in our airspace continue to rise, it is unsurprising that the availability of counter-drone technologies has likewise increased,” said Deputy Attorney General Jeffrey A. Rosen… The Advisory has been issued at a time when the commercial demand for UAS detection and mitigation is high, but the authority to use those capabilities is far from clear.”

The Advisory raises several issues of significant legal consequence for any developer or operator of a Counter-UAS system.  This blog will analyze the legal aspects of the Advisory in a subsequent post.


                                     © Robert E. Kelly 2015-2020