The Restoring American Airspace Sovereignty Executive Order was issued by President Trump on June 6, 2025. See here. The purpose of the Executive Order (EO) was to address the perceived threat offered by Uncrewed Aircraft Systems (“UAS” or “drones”) to potentially endanger public safety through unauthorized drone flights and to ensure American sovereignty over its skies and that its airspace remains safe and secure.
The following is Part Three of a summary of provisions of particular interest with respect to drone law in the EO.
Section 7 of the EO, entitled “Detection, Tracking, and Identification of Drones and Drone Signals”, provides that:
(a) To the extent permitted by law and consistent with the Fourth Amendment, executive departments and agencies shall use all available existing authorities to employ equipment to detect, track, and identify drones and drone signals.
(b) Within 30 days of the date of this order, the Attorney General, the Secretary of Transportation, the Secretary of Homeland Security, and the Chairman of the Federal Communications Commission shall revise the August 2020 “Advisory on the Application of Federal Laws to the Acquisition and Use of Technology to Detect and Mitigate Unmanned Aircraft Systems” to reflect relevant developments in Federal law and regulations addressing drones.
(c) Within 60 days of the date of this order, the Administrator of the FAA shall provide, to the extent permitted by law, including the Privacy Act of 1974 (5 U.S.C. 552a), automated real-time access to personal identifying information associated with UAS remote identification signals to appropriate executive departments and agencies and SLTT agencies for the purposes of enforcing applicable Federal or State law, with appropriate national security and privacy safeguards.
The revision of the above-referenced Advisory to allow executive departments and agencies to use all available existing authorities to employ equipment to detect, track, and identify drones and drone signals, as well as to reflect relevant developments in Federal law and regulations addressing drones, is necessary for several important reasons.
Background.
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 (“August 2020 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 August 2020 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.
Detection Capabilities
The August 2020 Advisory breaks the detection capabilities into two categories, since each category presents a unique set of difficulties from a legal perspective:
1. Systems that detect, monitor, or track UAS often rely on radio-frequency (RF), radar, electro-optical (EO), infrared (IR), or acoustic capabilities, or a combination thereof. These capabilities detect the physical presence of UAS or signals sent to or from the UAS.
2. Detection systems that emit electromagnetic waves or pulses of sound or light that are reflected off an object and back to the detection system—such as radar, EO/IR, and acoustic systems—are less likely to pose concerns under federal criminal surveillance statutes. Such technology senses the sound or electromagnetic waves produced by or reflected from the UAS and does not capture, record, decode, or intercept electronic communications.
The August 2020 Advisory advises caution for the UAS detection systems that detect the physical presence of UAS by intercepting signals sent to or from the UAS. Specifically, the August 2020 Advisory indicates that systems using RF capabilities to detect and track UAS by monitoring the communications passed between a UAS and its ground control station may implicate two federal statutes, the Pen/Trap Statute and Wiretap Act.
The August 2020 Advisory notes that the Pen/Trap Statute, 18 U.S.C. §§ 3121-3127, criminalizes the “use” or “installation” of a “device” or “process” that “records,” “decodes,” or “captures” non-content dialing, routing, addressing, or signaling (“DRAS”) information. DRAS information is non-content information used to transmit or process communications; depending on the system, this could include device serial numbers, cell site information, media access control (MAC) addresses, the international mobile equipment identity (IMEI), or the international mobile subscriber identity (IMSI). Use or installation of a pen register or trap and trace device is prohibited, unless conducted pursuant to a court order or when a statutory exception applies. With respect to the Pen/Trap Statute, the exceptions state that they are limited only to providers of wire or electronic communication services. While the term “non-content” is not defined, content is defined as “any information concerning the substance, purport, or meaning of that communication.” 18 U.S.C. § 2510(8). Importantly, machine-to-machine communications and data transfers between devices can be considered “content.
The Wiretap Act (also known as Title III), 18 U.S.C. §§ 2510 et seq., prohibits, among other things, “intentionally intercept[ing]” the content of “any . . . electronic communication[,]” unless it is conducted pursuant to a court order or a statutory exception applies. An “electronic communication” is defined, with certain exceptions, as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce.” Id. § 2510(12).
Problems Raised by the Pen/Trap Statute and the Wiretap Act
The proscriptions created by the Pen/Trap Statute and the Wiretap Act described above are problematic for counter-UAS solutions because they act as barriers to what might be the simplest method of drone detection and mitigation of the rogue UAS.
Background: Mitigation
As the term is used with reference to UAS, “mitigation” means preventing the operation of the rogue UAS. The August 2020 Advisory provides that:
Mitigation capabilities fall into two general categories: non-kinetic and kinetic. Non-kinetic solutions use non-physical measures to disrupt or disable UAS, including RF, WiFi, or Global Positioning System (GPS) jamming; spoofing; hacking techniques; and non-destructive directed energy weapons. Kinetic solutions may employ a variety of measures capable of physically disrupting or disabling a UAS, including nets, projectiles, and lasers. The use of non-kinetic or kinetic solutions may implicate federal criminal prohibitions against, among other things, intercepting and interfering with communications, damaging a “protected computer,” and damaging an “aircraft.” … Jamming technologies are designed to block or interfere with authorized radio communications. Examples of jamming include transmitting RF signals from a jammer at a higher “signal strength” than the RF signals being used to navigate or control the aircraft; preventing a cellular, WiFi, or Bluetooth-enabled device from connecting to a network (such as a cellular system or the Internet); or preventing a GPS unit from receiving positioning signals from a satellite. Spoofing technologies can replicate and replace or modify signals, and can lead to loss of control over the UAS’s navigation and communications link (e.g., its link to its ground controller). Hacking techniques generally focus on the UAS’s communications link and/or the onboard computer processors… Jamming, spoofing, and hacking technologies should be evaluated under the federal criminal statutes below (including the aircraft sabotage and aircraft piracy provisions), in addition to the laws discussed above with regard to detection.
So, the Pen/Trap Statute and the Wiretap Act as currently interpreted bar the interception of the controlling signal from the pilot in command on the ground to the drone in flight. Applying the law of unintended consequences to statutes designed to intercept analog telephone calls, it would seem that the literal application of the Pen/Trap Statute and the Wiretap Act contained in the August 2020 Advisory to the interception of wireless communications between potentially dangerous drones and their pilots is misguided. Hence, the EO’s call for the Pen/Trap Statute and the Wiretap Act to be revised “to reflect relevant developments in Federal law and regulations addressing drones” carries merit.
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