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FAA Reauthorization, Explained: Part 4, Can Homeland Security Shoot Down Your Drone?

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The new proposed FAA Reauthorization package has been made public.  It’s wordy, complex, and confusing – and the headlines haven’t made understanding what’s inside easier.  There are several points of critical importance for the drone industry to understand.  The proposed Repeal of Section 336, the Integration Pilot Program, the “Safeguarding the Skies” Act, the enforcement of drone laws and the timeline for drone integration are all addressed in the bill.

Without expressing an opinion on the proposed regulation, this series of short articles will provide a plain English explanation of each of these issues as written in the bill.  This explanation is for educational purposes and is not to be construed as legal advice.

A vote on HR 302 may happen as early as today (October 3) but the current extension expires no later than October 7.   For more information on the bill, see Part 1 (Repeal of Section 336), Part 2 (Enforcement), and Part 3 (Privacy) of this series.

Can Homeland Security Now Shoot Down a Drone?
Embedded in the FAA Reauthorization Act is the  “Preventing Emerging Threats Act of 2018.”  This allows federal agencies to deal with drones that are deemed a threat by taking effective action, which may include disabling the communications system or taking down the drone.
Some context: Disabling communications, taking down a drone, and other actions to mitigate drone threats are currently prohibited by laws enacted prior to the growth of the drone industry.  Department of Justice and Department of Homeland Security has asked Congress to give them more freedom to deal with potential terrorist threats involving the use of commercial drones.  The DOJ and DHS testified earlier this year on the need for changes in the law which would not only allow them broader power to disable drones deemed threatening, but also allow them to test potential anti-drone technologies.
Some organizations have protested the Preventing Emerging Threats Act, saying that the Act is too broad and too vague.  The organization FreedomWorks says that the Act gives:
…Security (DHS) free rein to shoot down civilian drones that they deem to be a “credible threat.” Of course, this bill vaguely defines “credible threat” and allows the government to intercept photo, video, or any other data on the drone. This opens the door to sweeping new surveillance authority for the U.S. government, circumventing the Fourth Amendment. This section of the bill does not pass the constitutional test, and should be rejected by any member seeking to honor his or her oath to support and defend the Constitution.
What the Act Says
In their testimony earlier this year, representatives from DOJ and DHS asked for the power to disable drones regardless of any other law in the entire criminal code, saying that technology was changing too quickly to specify which laws might need to be circumvented.  But that did not end up in the final version, which names specific sections of the criminal code that will not apply.
The Act allows federal agencies to (in plain English, not to be construed in any way as legal advice) track, identify, intercept, communicate with, warn, seize, or disable a drone deemed a “credible threat.” “Credible Threat” is not defined in the Act but a phrase says that it will be defined in agreement by both Secretary of Transportation and the Attorney General.   The threat must be to a “covered facility or asset,” not just general airspace.
The Act also allows for research and testing of anti-drone technologies.

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