RESTORING AMERICAN AIRSPACE SOVEREIGNTY - EXECUTIVE ORDER ISSUED JUNE 6, 2025 - HIGHLIGHTS, PART THREE

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.

RESTORING AMERICAN AIRSPACE SOVEREIGNTY - EXECUTIVE ORDER ISSUED JUNE 6, 2025 - HIGHLIGHTS, PART TWO

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 Two of a summary of provisions of particular interest with respect to drone law in the EO.

Section 3 of the EO, entitled “Policy”, provides that:

It is the policy of the United States to ensure control over our national airspace and to protect the public, critical infrastructure, mass gathering events, and military and sensitive government installations and operations from threats posed by the careless or unlawful use of UAS.   It is the policy of the United States to ensure control over our national airspace and to protect the public, critical infrastructure, mass gathering events, and military and sensitive government installations and operations from threats posed by the careless or unlawful use of UAS.

One measure of the need to protect the public is evidenced by the FAA data concerning drone incursions of the airspace near airports. The FAA website, Drone Sightings Near Airports, at https://www.faa.gov/uas/resources/public_records/uas_sightings_report, has tracked drone sightings near airports since October, 2019. Since that time, the FAA has documented thousands of drone sightings near airports.  The FAA reports 1,028 drone sightings near airports in the first half of 2025 alone.

The EO also addresses the protection of critical infrastructures. The EO states that “…the term “critical infrastructure” has the meaning given in 42 U.S.C. 5195c(e), and includes systems and assets in all of the designated critical infrastructure sectors identified in National Security Memorandum 22 of April 30, 2024 (Critical Infrastructure Security and Resilience) (NSM-22)…” (NSM-22 is found at https://www.cisa.gov/national-security-memorandum-critical-infrastructure-security-and-resilience).

To facilitate the protection of critical infrastructures, Section 5 of the EO requires the FAA to establish Airspace Regulations to Protect the Public.  Section 5 provides:

The Administrator of the Federal Aviation Administration (FAA) shall:

(a)  with respect to the rulemaking required by section 2209(f) of the FAA Extension, Safety, and Security Act of 2016, as amended:

(i)   promptly submit a notice of proposed rulemaking (NPRM) to the Office of Management and Budget (OMB) and the Task Force establishing the statutorily required process for restricting drone flights over fixed site facilities, and interpreting, to the extent appropriate, critical infrastructure consistent with the definition of that term in this order; and

(ii)  promulgate a final rule as soon as practicable after publication of the NPRM;

Section 2209 has a long history, as one might surmise from the reference above to the federal legislation enacted in 2016.

Background Of Section 2209

On July 15, 2016, Congress enacted Public Law 114-190, entitled the FAA Extension, Safety and Security Act of 2016 (FESSA). The legislation included Section 2209, entitled “Applications for Designation”, which directed the Secretary of Transportation to “establish a process to allow applicants to petition the Administrator of the Federal Aviation Administration (FAA) to prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility.” Within Section 2209, Congress directed that an eligible facility must be a fixed site facility within one or more defined industry sectors: “critical infrastructure, such as energy production, transmission, and distribution facilities and equipment;  ; amusement parks; [and] other locations that warrant such restrictions.”

On October 5, 2018, Congress enacted Public Law 115–254, also known as the FAA Reauthorization Act of 2018 (FAARA 2018). FAARA 2018 amended part A of subtitle VII of title 49, United States Code by inserting a new chapter 448, entitled Unmanned Aircraft Systems, which incorporated additional authorities and mandated the FAA to support the further integration of UAS into the airspace of the United States. One of those provisions amended Section 2209 of FESSA to add rail facilities as an additional fixed site facility sector to be protected.

On May 16, 2024, Congress enacted Public Law 118-63, entitled FAA Reauthorization Act of 2024 (FAARA 2024). FAARA 2024 reauthorized the FAA through FY2028, including activities and programs related to airport planning and development, facilities and equipment, and operations. With respect to fixed site facilities, Section 929 of FAARA 2024 amended Section 2209 to add state prisons as an additional fixed site facility sector to those designated previously. FAARA 2024 added the following definition to section 2209:

‘‘(g) DEFINITION OF STATE PRISON.—In this section, the term ‘State prison’ means an institution under State jurisdiction, including a State Department of Corrections, the primary use of which is for the confinement of individuals convicted of a felony.’’

In light of the foregoing inaction of FAA compliance with prior specific Congressional mandates, the text in Section 5 requiring the FAA to implement Section 2209 with all due haste is entirely understandable if not long overdue.

RESTORING AMERICAN AIRSPACE SOVEREIGNTY - EXECUTIVE ORDER ISSUED JUNE 6, 2025 - HIGHLIGHTS, PART ONE

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. The purpose of the EO was also to ensure that America’s airspace remains safe and secure.

The following is Part One of a summary of provisions of greatest interest with respect to drone law in the EO.

1.      1. Ensure American sovereignty:

Section 1 of the EO, entitled “Purpose” provides that:

Unmanned aircraft systems (UAS), otherwise known as drones, offer the potential to enhance public safety as well as cement America’s leadership in global innovation.  But criminals, terrorists, and hostile foreign actors have intensified their weaponization of these technologies, creating new and serious threats to our homeland.  Drug cartels use UAS to smuggle fentanyl across our borders, deliver contraband into prisons, surveil law enforcement, and otherwise endanger the public.  Mass gatherings are vulnerable to disruptions and threats by unauthorized UAS flights.  Critical infrastructure, including military bases, is subject to frequent — and often unidentified — UAS incursions.  Immediate action is needed to ensure American sovereignty over its skies and that its airspace remains safe and secure.

With respect to the use of the term “sovereignty” as emphasized in the EO, normally this term is used in the context of supreme authority. According to  the Oxford English Dictionary, “sovereignty is the supreme authority within a state, encompassing the power to govern and the ability to impose laws on everyone else within its territory. It essentially means a state's right to exercise supreme authority within its borders.”

Federal law specifically confers on the FAA the legal authority to control the National Airspace System (NAS). The FAA’s general statutory authority is found in the United States Code, Title 49, 49 U.S.C. §§40101- 50105. Specifically, the United States Government has exclusive sovereignty over airspace of the United States pursuant to 49 U.S.C.A. § 40103. The airspace, therefore, is not subject to private ownership nor can the flight of an aircraft within the navigable airspace of the United States constitute a trespass.

Unmanned aircraft are aircraft consistent with Subtitle B of Public Law 112-95 and the existing definition of aircraft in Title 49 of the United States Code, 49 U.S.C. 40102.

The United States Congress has vested the Federal Aviation Administration (FAA) with authority to regulate the areas of airspace use, management and efficiency, air traffic control, safety, navigational facilities, and aircraft noise at its source. 49 U.S.C. §§ 40103, 44502, and 44701-44735. Congress has directed the FAA to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.” 49 U.S.C. § 40103(b)(1). Congress has further directed the FAA to “prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes)” for navigating, protecting, and identifying aircraft; protecting individuals and property on the ground; using the navigable airspace efficiently; and preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects." 49 U.S.C.§ 40103(b)(2).

Pursuant to the foregoing, the FAA has the legal authority to control the NAS, and the FAA has not ceded this legal control. So, while the spirit of the EO is well taken, there technically is no need to “restore” the FAA’s “supreme authority” over the NAS at this point in time.

DHS, FBI, FAA & DoD Joint Statement on Ongoing Response to Reported Drone Sightings

In response to the recent publicity and confusion concern numerous reports of drone sightings in the northeastern United States, the Department of Homeland Security, Federal Bureau of Investigation, Federal Aviation Administration and Department of Defense issued a  Joint Statement on Ongoing Response to Reported Drone Sightings, as follows:

Tuesday, December 17, 2024

There are more than one million drones lawfully registered with the FAA in the United States and there are thousands of commercial, hobbyist and law enforcement drones lawfully in the sky on any given day. With the technology landscape evolving, we expect that number to increase over time.

FBI has received tips of more than 5,000 reported drone sightings in the last few weeks with approximately 100 leads generated, and the federal government is supporting state and local officials in investigating these reports. Consistent with each of our unique missions and authorities, we are quickly working to prioritize and follow these leads. We have sent advanced detection technology to the region. And we have sent trained visual observers.

Having closely examined the technical data and tips from concerned citizens, we assess that the sightings to date include a combination of lawful commercial drones, hobbyist drones, and law enforcement drones, as well as manned fixed-wing aircraft, helicopters, and stars mistakenly reported as drones. We have not identified anything anomalous and do not assess the activity to date to present a national security or public safety risk over the civilian airspace in New Jersey or other states in the northeast.

That said, we recognize the concern among many communities. We continue to support state and local authorities with advanced detection technology and support of law enforcement. We urge Congress to enact counter-UAS legislation when it reconvenes that would extend and expand existing counter-drone authorities to identify and mitigate any threat that may emerge. 

Additionally, there have been a limited number of visual sightings of drones over military facilities in New Jersey and elsewhere, including within restricted air space. Such sightings near or over DoD installations are not new. DoD takes unauthorized access over its airspace seriously and coordinates closely with federal, state, and local law enforcement authorities, as appropriate. Local commanders are actively engaged to ensure there are appropriate detection and mitigation measures in place.

For more information, visit https://www.faa.gov/newsroom.

The FCC Proposes Rules for UAS Operations on Licensed Frequencies

The Federal Communications Commission ("FCC") in Washington, D.C., has recently proposed rules to enable wireless communications for unmanned aircraft systems ("UAS") to operate on licensed frequencies in the 5030-5091 MHz frequency band. As stated  in its Public Notice dated January 4, 2023, the FCC seeks comment regarding whether measures are necessary to facilitate such use on flexible-use wireless networks.  The FCC notes that unmanned aircraft systems today primarily operate under unlicensed and low-power wireless communications rules or experimental licenses.  Given what it identifies as the important current and potential uses for these systems, the FCC  is considering ways to improve the reliability of their operations, such as by allocating licensed frequencies for UAS utilization.

FCC Chairwoman Jessica Rosenworcel is quoted in the Public Notice as saying: “It is past time that we assess the availability of wireless communications resources for the increasingly important remote-piloted aircraft activity we rely on today. The FCC must ensure that our spectrum rules meet the current – and future – spectrum needs of evolving technologies such as unmanned aircraft systems, which can be critical to disaster recovery, first responder rescue efforts, and wildfire management.”

The Notice of Proposed Rulemaking (“NPRM”), also released by the FCC on January 4, 2023, seeks comment on service rules for the 5030-5091 MHz band that would provide unmanned aircraft system (UAS) operators with access to licensed spectrum with the reliability necessary to support safety-critical UAS communications links. The NPRM notes that “As unmanned aircraft (UA) flights increasingly involve operations with a higher risk profile, such as flights that use large aircraft, carry heavy cargo or human passengers, or travel into the controlled airspace used by commercial passenger aircraft, operators have a growing need for the greater reliability that interference-protected licensed spectrum provides for control-related and other safety-related communications.”

The NPRM also seeks comment regarding whether the FCC’s rules for various flexible-use spectrum bands are sufficient to ensure co-existence of terrestrial mobile operations and UAS use or whether changes to FCC rules are necessary to prevent or mitigate interference and performance concerns.  Also, to further promote the safe integration of unmanned aircraft operations in controlled airspace and facilitate flight coordination, the NPRM proposes a process for UAS operators to obtain a license in the aeronautical VHF band to communicate with air traffic control and other aircraft while maintaining the integrity of the band. 

Comments are due to be filed with the FCC no later than March 9, 2023.  Reply comments are due April 10, 2023. The link to the publication of the NPRM  in the Federal Register can be found here.

 

The FAA Releases Its Final Remote ID Rules for Unmanned Aircraft

The U.S. Department of Transportation’s Federal Aviation Administration (“FAA”) on December 28, 2020, in a press release announced final rules for Unmanned Aircraft (“UA”), commonly known as drones.  These final rules were published in the Federal Register on January 15, 2021, at 86 FR 4390, which established March 16, 2021 as the date upon which the rules will become final.

The first rule will require Remote Identification (“Remote ID”) of drones and allow operators of small drones to fly over people and at night under certain conditions. The FAA press release indicated that the new rule Remote ID rules are timely, since drones represent the fastest-growing segment in the entire transportation sector – with currently over 1.7 million drone registrations and 203,000 FAA-certificated remote pilots.

The FAA in its press release states that “Remote ID will help mitigate risks associated with expanded drone operations, such as flights over people and at night, and both rules support technological and operational innovation and advancements.”

The new rules should have a significant impact with respect to the development of the UAS industry.  “The new rules make way for the further integration of drones into our airspace by addressing safety and security concerns,” said FAA Administrator Steve Dickson. “They get us closer to the day when we will more routinely see drone operations such as the delivery of packages.”

The Remote ID rule (PDF) applies to all operators of drones that require FAA registration. There are three ways to comply with the operational requirements:

1. Operate a standard Remote ID drone that broadcasts identification and location information of the drone and control station;

2. Operate a drone with a Remote ID broadcast module (may be a separate device attached to the drone), which broadcasts identification, location, and take-off information; or

3. Operate a drone without Remote ID but at specific FAA-recognized identification areas.

See the link to the full text of the final rule at FAA’s Remote ID webpage here. 

There is one interesting note initially from a legal perspective.  The FAA makes clear in the Remote ID Executive Summary in footnote 1 that the new Remote ID rules apply broadly to unmanned aircraft (“UA”) and not simply unmanned aircraft systems (“UAS”).  Footnote 1 states in part:

The FAA does not use the terms unmanned aircraft system and unmanned aircraft interchangeably. The FAA uses the term unmanned aircraft as defined in 14 CFR 1.1 to refer specifically to the unmanned aircraft itself. The FAA uses the term unmanned aircraft system to refer to both the unmanned aircraft and any communication links and components that control the unmanned aircraft. As explained in section V.A of this rule, the FAA is adding the definition of unmanned aircraft system to 14 CFR part 1.

Given the extensive nature of this Remote ID final rule (124 pages in the Federal Register) further analysis of this final rule will follow.

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 President—or 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