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

The FAA Proposes a Landmark Rule for UAS Remote Identification

In the FAA Modernization and Reform Act of 2012, Congress tasked the Secretary of Transportation with developing “a comprehensive plan to safely accelerate the integration of

civil unmanned aircraft systems into the national airspace system.” Pub. L. 112-95, § 332(a)(1), 126 Stat. 11, 73 (codified at 49 U.S.C. § 40101).               

In 2016, pursuant to the instruction of the FAA Modernization and Reform Act, the Federal Aviation Administration  (FAA) promulgated the rule establishing the regulatory scheme  for drones in  Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064 (June 28, 2016) (hereinafter “Small UAS Rule”). This rule added a new part 107 to Title 14 Code of Federal Regulations (14 CFR) to allow for routine civil operation of small UAS (i.e., drones) in the national airspace system (“NAS") and to provide safety rules for those operations.

The key element to this new part 107 to CFR Title 14 was to allow commercial operation of Small UAS, i.e., drones weighing less than 55 pounds.

Now, in a truly landmark event, the U.S. Department of Transportation’s Federal Aviation Administration (FAA) on December 26, 2019, announced in a press release a proposed rule that would continue the safe integration of Unmanned Aircraft Systems (UAS), commonly called drones, into the nation’s airspace by requiring them to be identifiable remotely.

“Remote ID technologies will enhance safety and security by allowing the FAA, law enforcement, and Federal security agencies to identify drones flying in their jurisdiction,” said U.S. Transportation Secretary Elaine L. Chao.

The FAA states that the adoption of the proposed rule would then require the remote identification of unmanned aircraft systems. The remote identification of unmanned aircraft systems in the airspace of the United States would address safety, national security, and law enforcement concerns regarding the further  integration of these aircraft into the airspace of the United States while also enabling greater operational capabilities.

The FAA will seek input regarding the Notice of Proposed Rulemaking (“NPRM”) for Remote Identification (“Remote ID”) of Unmanned Aircraft Systems  that was placed on display in the Federal Register on December 26, 2019. The document details in the Federal Register accompanying the proposed rule indicates that the 319-page NPRM, Document No. 2019-28100 in Docket No.: FAA-2019-1100 will be published on December 31, 2019. The publication date will establish a 60-day window for the filing of comments by interested parties to assist the FAA in developing a final rule to enhance safety in the skies over the U.S. due to the implementation of Remote ID systems.

See a copy of the complete FAA Remote ID NPRM  here.

As the reader might imagine, the 319-page document establishing the FAA’s Remote ID regulatory scheme, which program will be the foundation for all drone traffic management in the future, is  intensely complicated. As the FAA notes in its press release, Drones are a fast-growing segment of the entire transportation sector – nearly 1.5 million drones and 160,000 remote pilots are registered with the FAA, with that number estimated to increase as the FAA implements its Remote ID program and teh commercial drone industry continues to mature. Consequently, all interested parties are encouraged to weigh in with comments regarding this revolutionary proposal..  

A more detailed analysis of the NPRM, section by section, will follow in future posts.