In a long awaited move, the interagency working group responsible for coordinating drone defense policy has issued guidance to the public about what they can and cannot do to combat unauthorized drone use. The guidance, issued jointly by the Department of Justice (DOJ), the Federal Aviation Administration (FAA), the Department of Homeland Security (DHS), and the Federal Communications Commission (FCC), covers the application of federal criminal laws, aviation safety laws, transportation and airport security laws, and radio frequency and communication spectrum issues to drone defense.
The guidance notes that federal criminal laws potentially apply to both the detection and mitigation of UAS. For detection, if the technology captures, records, decodes, or intercepts, in whole or in part, the communications between the aircraft and the controller, then it implicates the Pen/Trap Statute, 18 USC §§ 3121-3127, which makes it a crime to capture even non-message content such as dialing, routing, addressing or signaling information. In the context of a drone, the restricted information could include the aircraft’s serial number, cell site information, or media access control (MAC) address. Similarly the Wiretap Act, 18 U.S.C. §§ 2510 et seq., prohibits the interception of the contents of any electronic communication without a warrant. The Department of Justice notes, however, that the Wiretap Act has an exception for communications that are readily available for the public, and that:
the Wiretap Act also has an exception for the interception of any radio communications that are transmitted “by any . . . aeronautical communications system.” Id. § 2511(2)(g)(ii)(IV). UAS RF control systems may be considered “aeronautical communications systems” under the Act.
Unfortunately, the DOJ also notes that existing case law raises questions as to the scope of these two exceptions.
With regard to mitigation technologies, the guidance notes that systems based on jamming communications or that “spoof” the drone into accepting commands from the counter UAS system are potentially blocked by a wide range of laws, including the Computer Fraud and Abuse Act and statutes making it a crime to interfere with GPS signals. In addition, systems based on “kinetic” solutions, such as shooting down or capturing the drone, may violate the Aircraft Piracy Act and the Aircraft Sabotage Act.
In addition, the guidance notes that there are a wide range of communication laws that may be implicated. Radio transmission devices are strictly regulated with regard to their power output, and are required to not interfere with other legitimate users of the spectrum. The use of any jamming technology by the public, or even state and local governments and law enforcement, is strictly prohibited.
In a separate announcement, the Department of justice noted that:
To date, Congress has given limited authority to only four federal Departments – Defense, Energy, Justice, and Homeland Security – to engage in UAS detection and mitigation activities, notwithstanding certain otherwise potentially applicable federal criminal laws. The Departments and Agencies issuing the Advisory do not have the authority to approve non-federal public and private use of UAS detection or mitigation capabilities, nor do they conduct legal reviews of commercially available products’ compliance with those laws.
While this guidance does identify all of the relevant issues at the Federal level, it does not address any state or local issues, such as computer hacking and communication intercept laws, nor does it cover potential civil liability flowing from any physical injury to persons or damage to property as a result of mitigating a UAS threat, or civil liability for an unlawful interception of wire, oral, or electronic communications under 18 U.S.C. § 2520.
Unfortunately, the one thing missing from the guidance is a roadmap of how to get past these obstacles. The solution to the issues outlined in the memo will have to wait for comprehensive, well thought out legislation from Congress, which they will no doubt get to once they have solved all of the other problems facing the country.