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

FAA Releases New Drone Sighting Report

The Federal Aviation Administration (FAA) in Washington D.C. has recently  released an updated list of pilot, air traffic controller, law enforcement and citizen reports of potential encounters with unmanned aircraft systems (UAS) – more popularly called “drones". The latest data covers February through September 2016.

The FAA reported that possible drone sightings to FAA air traffic facilities continued to increase during FY 2016. There were 1,274 such reports from February through September in 2016, compared with 874 for the same period in 2015.

The FAA reported that, although the data contains several reports of pilots claiming drone strikes on their aircraft, to date the agency has not verified any actual collision between a civil aircraft and a civil drone. Every investigation to date according to the FAA has found the reported collisions were either birds, impact with other items such as wires and posts, or structural failure not related to colliding with an unmanned aircraft.

The FAA’s overarching mission, as I have indicated in several filings with the FAA,  as well as in posts elsewhere in this blog, is Safety First.  Safely integrating unmanned aircraft into the national airspace system is one of the FAA's top priorities, and the FAA continuously warns the public that operating drones around airplanes and helicopters is dangerous and illegal. The FAA states that unauthorized operators may be subject to stiff fines and criminal charges, including possible jail time.

The FAA’s data concerning possible drone sightings to FAA air traffic facilities during FY 2016 and other periods is attached here.