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
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