Navigating the Limits: Federal Laws Restrict Counter-Drone Measures for Critical Infrastructure

Federal law limits counter-drone measures for infrastructure sites

By DRONELIFE Features Editor Jim Magill

Recent incidents involving drones flying near sensitive government sites, such as military bases, or over other potentially vulnerable targets, such as sports stadiums, have raised significant questions as to the best way to protect these sites from incursions by drones operated in a careless, or worse, malicious manner. Local, state and federal officials are increasingly calling for changes to current federal law, regarding the ability of facility owners to detect and mitigate unwanted drone incursions. Lawmakers are also demanding that state, local, tribal and territorial (SLTT) law enforcement agencies be granted new authority to interrupt the flight of, or even bring down errant drones that pose a threat to critical infrastructure sites or other significant potential targets.

In a series of articles, DroneLife will examine current federal laws pertaining to drone detection and mitigation, as well as talk to experts representing significant facilities, including jails and prisons, conventional and nuclear power plants, dams, airports and sports stadiums. This first article will review current laws regulating the use of counter-drone technology.

Last October, the Wall Street Journal reported that a number of unidentified UAVs had been spotted flying over some of the nation’s most significant military sites, in Virginia and Nevada for the better part of a year. The same month, grad student Fengyun Shi, a Chinese national pleaded guilty to two misdemeanor counts of unauthorized drone photography for flying his UAV over the Newport News Shipbuilding facility in Norfolk, Virginia.

In November, federal agents arrested and charged a Tennessee man with planning to use a drone with explosives attached to fly into an electric substation. In a hearing before Congress last month, the chief of security of the National Football League testified that incidents of unwanted drone incursions at NFL games had increased by more than 20,000 percent between 2017 and 2023.

These and other incidents, including the spate of mysterious sightings of alleged drone activity in the Northeastern U.S., have led to a national re-examination of the federal laws pertaining to potential counter-drone measures that can legally be taken to protect critical infrastructure sites and other facilities of concern. Several bills are pending before Congress to address the issue.

Counter-drone measures are divided into two broad categories, detection and mitigation. Aside from a few federal agencies that have been designated by Congress to employ mitigation techniques, most public and all private entities are limited to the use of detection methods to counter the potential threats posed by drones in the hands of bad actors.

Detection systems rely on radio-frequency (RF), radar, electro-optical (EO), infrared (IR), or acoustic capabilities, or a combination thereof to detect the physical presence of a drone or the signals emanating from it. However, even these systems can potentially run afoul of federal criminal surveillance laws, such as the Pen/Trap Statute and the Wiretap Act, depending on whether they capture, record or intercept electronic communications transmitted to and from a drone and the type of communications involved.

Mitigation capabilities fall into two general categories: non-kinetic and kinetic. Non-kinetic solutions use non-physical measures to disrupt or disable unmanned vehicle operations. These include: RF, WIFI, or Global Positioning System (GPS) jamming; spoofing; hacking techniques; and non-destructive directed energy weapons. Kinetic counter-drone systems are designed to physically disrupt or disable a UAV, and can include the use of nets, projectiles and lasers.

Drone mitigation limited to a few federal agencies

Under current federal law, only a handful of federal agencies — the departments of Defense, Energy, Justice and Homeland Security — can take measures to interfere with the flight of drones, and then only under very restrictive circumstances.

Given its mission to protect the homeland, the Defense Department has been given the authority to bring down drones that might threaten its assets. In a fact sheet entitled “Strategy for Countering Unmanned Systems” the DoD outlines measures it is authorized to deploy to counter unwanted drone incursions over military facilities, including the delivery of “robust counter-unmanned systems at speed and scale.”

According to a Department of Homeland Security document, DHS has the primary responsibility to protect “covered assets or facilities” related to the U.S. Coast Guard,  U.S. Customs and Border Protection, the U.S. Secret Service and the Federal Protective Service.

“The Preventing Emerging Threats Act of 2018 grants the Department of Homeland Security statutory authority to counter credible threats from unmanned aircraft systems (UAS) to the safety or security of a covered facility or asset,” the document states.

This authority gives the DHS the broad power to take actions to counter credible drone threats, including the ability to:

• Detect, identify, monitor and track the unmanned aircraft system
• Warn the UAS operator
• Disrupt control of the drone
• Seize or exercise control of the UAS
• Confiscate the UAS and
• Use reasonable force to disable, damage or destroy the UAS

In addition to working to defend covered assets and facilities from drone threats, DHS also works with other branches of federal government, as well as SLTT law enforcement agencies to provide counter-drone support at national special security events and certain mass gatherings, as well as assist in “active federal law enforcement investigations, emergency responses, or security operations in specified locations and for limited duration (e.g., airport disruption, disaster response).”

In August 2020 the FAA, DOJ, and DHS, in conjunction with the Federal Communications Commission (FCC) issued an advisory guidance document to guide non-federal public and private entities in the selection of “technical tools, systems and capabilities to detect and mitigate unmanned aircraft systems.” The document outlines the various provisions of the U.S. Criminal Code enforced by DOJ; and federal laws and regulations administered by the FAA, DHS and the FCC that limit the counter-drone technologies that are legally available to most entities.

“Capabilities for detecting and mitigating UAS may implicate federal criminal laws relating to surveillance, accessing or damaging computers, and damage to an aircraft,” the document states.

The advisory only cover federal laws and regulations, and advises that an entity seeking to invest in a counter-drone technology system should consult legal counsel “experienced with both federal and state criminal, surveillance and communications laws.” In addition, entities should avoid installing any system that could potentially interfere with “the public’s privacy, civil rights and civil liberties.”

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Read more:

• Counter UAS Update, From the Floor of National Public Safety UAS Conference
• Georgia Prisons Face Challenges with Drone-Supplied Contraband: Calls for Legislative Action on Counter-UAS Technology
• Congressional Hearing, Part 2: Counter Drone Experts Urge Decentralized Innovation, Collaboration

Jim Magill is a Houston-based writer with almost a quarter-century of experience covering technical and economic developments in the oil and gas industry. After retiring in December 2019 as a senior editor with S&P Global Platts, Jim began writing about emerging technologies, such as artificial intelligence, robots and drones, and the ways in which they’re contributing to our society. In addition to DroneLife, Jim is a contributor to Forbes.com and his work has appeared in the Houston Chronicle, U.S. News & World Report, and Unmanned Systems, a publication of the Association for Unmanned Vehicle Systems International.