Detect and Protect: How the Federal Government is Looking to Advance Use of Counter-UAS Technologies

Americans are using uncrewed aircraft systems (UAS or drones) more than ever, with the FAA reporting registering 865,505 drones as of May of this year.^[1] The benefits of drones, from aiding first responders to package delivery, are well known, but concerns remain about the risk of malicious actors using drones for activities such as harassment, criminal activity, and even espionage. To counter this threat, the White House and Congress are exploring new initiatives to enable greater monitoring and mitigation of unauthorized UAS through the use of counter-UAS (C-UAS) technologies.

C-UAS refers to a range of technologies that perform a number of different functions to protect against unauthorized drones, such as detecting, identifying, monitoring, and tracking a drone in flight, or even mitigating a threat by disrupting control of a UAS or disabling the aircraft. As we have explained previously, these techniques raise legal issues, as the Federal Communications Commission (FCC) prohibits interfering with authorized radio communications, and it is a felony to sabotage an aircraft, which includes a drone. Even technologies that only do drone detection can raise questions about authority and compliance with law. Accordingly, federal law has provided only limited authorities to certain federal agencies to employ C-UAS technologies.

A recent White House Domestic Counter-UAS National Plan aims to expand “where we can protect against nefarious UAS activity, who is authorized to take action, and how it can be accomplished lawfully.” The White House Plan put forth eight key recommendations for action, the first of which is working with Congress on a legislative proposal to expand the existing C-UAS authorities for federal and state users, create a C-UAS pilot program for state and local law enforcement agency participants, and permit critical infrastructure owners and operators to purchase authorized C-UAS detection equipment to be used by appropriate agencies to protect their facilities. Now, Senators Portman and Peters have introduced bipartisan legislation to implement several of the White House Plan’s recommendations in the Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act of 2022.

This bill would:

• Extend the authority of the Department of Homeland Security (DHS) and Department of Justice (DOJ) to use C-UAS to mitigate credible threats posed by UAS. These two agencies’ existing authority to use C-UAS will otherwise expire on October 5, 2022.
• Grant additional authorities to State, Local, Tribal, and Territorial (SLTT) law enforcement agencies, DOJ, DHS and any owner or operator of an airport or critical infrastructure to use C-UAS to detect, identify, monitor, or track a UAS. These provisions would provide certainty to these entities about their ability to engage in detection and monitoring.
• Establish a separate pilot program for SLTT law enforcement to evaluate the benefits of C-UAS using authorized equipment and to conduct research, testing, training, and evaluation of that equipment.
• Clarify that the DHS/DOJ authority and the pilot program participant authority include the ability to detect, identify, monitor, and track UAS as well as disrupt, seize, or use reasonable force to disable UAS.
• Task DHS with creating an authorized equipment list for C-UAS, in consultation with the FAA, FCC, DOJ, and the National Telecommunications and Information Administration. This is the only C-UAS equipment that would be allowed for use under the expanded authorities and the pilot program.
• Describe the privacy protections for data acquired via use of C-UAS.

While the bill has bipartisan support in the Senate, its prospects for ultimate passage are, at this point, not entirely clear. The existing authority for DHS and DOJ to use C-UAS technologies is expiring soon, so Congress will need to take some action to extend those provisions—whether via this bill or another piece of legislation.

Notably, the bill establishes clear authority for various entities to use C-UAS to detect, identify, monitor, or track a UAS, but they may do so only using equipment authorized by DHS. This directive may end up curtailing existing C-UAS programs that rely on equipment that is not ultimately included on the list. Similarly, C-UAS manufacturers should consider the opportunities that may arise from inclusion on the list.

The Wiley UAS team will continue to monitor this legislation and other federal government efforts to implement the White House Plan and expand the use of UAS and C-UAS technologies. If you have questions about what is – and is not – permitted when it comes to C-UAS, please do not hesitate to contact us.

^[1] https://www.faa.gov/uas/resources/by_the_numbers/ (updated May 31, 2022).