Enhanced counter drone technology will soon be coming to state, local and tribal law enforcement. As many of you are aware, the Justice Department’s Office of Legal Policy issued a legal interpretation a number of years ago stating that a wide array of drone detection technology might violate federal law. In particular, the legal opinion raised an argument, without resolving it, that state and local law agencies using this technology may be violating the Wiretap Act, the Pen Register Act, and the Computer Fraud and Abuse Act, which are criminal felony statutes.
While the Justice Department’s analysis of the issue was cursory and flawed, the Department refused to clarify the matter or issue a more definitive analysis, keeping the issue in limbo for years. That all ended recently, when the Senate folded the Safer Skies Act into the National Defense Authorization Act, which was signed into law by President Trump on December 18, 2025. The Act creates a new carveout for state, local and tribal governments, allowing them to use counter drone technology under certain circumstances, exempting them from statutes like the Wiretap Act and 18 USC Section 32, which prohibits the destruction of aircraft in flight.
In order to take advantage of this expanded authority, state and local law enforcement and correction agencies must receive specific training from the Department of Homeland Security (DHS) and must use counter drone equipment that is approved by the Department of War and DHS. Once the local government has received certification, it is empowered to take the steps that are “necessary to mitigate a credible threat that an unmanned aircraft system or unmanned aircraft poses to the safety or security of people, facilities, and assets, a venue or set of venues used for large-scale public gatherings or events, critical infrastructure, or correctional facilities.” See NDAA at Section 8602. The act also provides that any UAS intercepted by local governments can be subjected to a civil forfeiture action.
The DHS and DOW have six months to craft the regulations necessary to implement the law and set up the training and approval process. In addition, DHS is required to track the use of counter drone technology. All local governments are required to report operational use of a counter drone system to DHS within 48 hours, including:
- The date, time, and geographic location of the mitigation action;
- A brief description of the credible threat or safety concern necessitating such action;
- The type of mitigation capability employed; and
- Any known operational effects, including the seizure, disabling, or destruction of an unmanned aircraft system or unmanned aircraft.
DHS must also submit a full report to Congress at the end of 2026 setting forth all of the activities it has conducted under the new authority.
Finally, the NDAA has also adopted a new “get tough” policy on illegal UAS operators, increasing the prison terms for repeat violations of National Defense Airspace and the use of UAS to smuggle contraband into prisons or in conjunction with other criminal activity. As the conflict in Ukraine has shown, critical infrastructure is far more vulnerable to attack by even small UAS than it was just a few years ago. While it should not have taken Congress so long to finally resolve this issue, it is resolved, and US National Security will be better for it.