The first Counter-UAS-related legislation of the 118th Congress has been introduced in the Senate. According to congress.gov, S. 1631, sponsored by Senator Gary Peters (D-MI), was introduced in the Senate on May 16th, and has been referred to the Homeland Security and Governmental Affairs Committee (HSGAC).
This bipartisan Counter-UAS legislation is formally titled, ‘‘Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act of 2023.’’ Co-Sponsors of the bill include Senator Ron Johnson (R-WI), Senator Kyrsten Sinema (I-AZ), and Senator John Hoeven (R-ND).
Before we examine what is in the proposed legislation, let us take a quick trip down memory lane to understand how we have arrived at this point.
The Path To New Counter-UAS Legislation and Authorities
FAA Reauthorization Act of 2018
The FAA Reauthorization Act was signed into law on October 5th, 2018. The 2018 Act is a wide-ranging reauthorization measure that provided the Federal Aviation Administration (FAA) with a host of crucial new authorities and responsibilities on an extensive range of aviation issues, including enhancing safety, improving infrastructure, and enabling innovation. The Act also extended the FAA’s funding and authorities through Fiscal Year 2023.
The FAA Reauthorization Act included Division H, also known as the “Preventing Emerging Threats Act of 2018.” This portion of the FAA Reauthorization Act authorized the Department of Justice (DOJ) and Department of Homeland Security (DHS) to engage in Counter-UAS activities that would otherwise violate relevant provisions of federal law. This is often referred to in the industry as “124n Authority.”
Although DHS and DOJ don’t typically publicly disclose when and where these authorities have been used since the FAA Reauthorization Act was signed into law, open-source examples include:
- United States Secret Service, United States Coast Guard, and DHS Science and Technology (DHS S&T) conducted a pilot “to test and evaluate technologies used to detect, identify, and mitigate Unmanned Aircraft Systems (UAS) that may pose a potential threat to “covered facilities” and assets at the September 2019 United Nations General Assembly (UNGA).”
- The Counter Unmanned Aerial Systems Branch (C-UAS) of the Secret Service develops and implements unmanned aerial systems detection and mitigation plans for sites visited by the President and Vice President of the United States, National Special Security Events and other designated major events.
- A DOJ press release in October 2020 addressed the forecast of an increase in the use of Counter-Unmanned Aerial Systems (C-UAS) Protection Activities and Criminal Enforcement Actions. The release noted that, “From Oct. 1, 2019, to Sept. 30, 2020, the FBI (Federal Bureau of Investigation) has provided counter-UAS support at dozens of events, including national level sporting events such as Super Bowl LIV in Miami, the 2019 World Series, and the 2020 Rose Bowl Game, as well as at other major events that draw large crowds like Washington, D.C.’s A Capitol Fourth and New York City’s New Year’s celebration.”
Although the Counter-UAS authorities provided to DOJ and DHS components were a step forward in protecting the homeland from the nefarious use of drones, neither agency has the resources to provide airspace awareness and protection to all critical infrastructure, assets, or mass gatherings that warrant or require additional safety and security.
The further delegation of authorities to our nation’s law enforcement agencies and critical infrastructure has been a hot topic in the security industry and law enforcement, among others. It is recognized that these authorities and technologies would be more effective when implemented at the local level, with the proper training and oversight.
Biden Administration Domestic Counter-Unmanned Aircraft Systems National Action Plan
The DOJ and the DHS authorities provided by the Preventing Emerging Threats Act of 2018 were set to expire on October 5th, 2022. In anticipation of the coming expiration of DOJ and DHS authorities, the Biden Administration released its Domestic Counter-Unmanned Aircraft Systems National Action Plan in April 2022.
The whole-of-government plan sought to address the threat of drones in the homeland. The Plan recommended expanding where the U.S. can protect against nefarious UAS activity, who is authorized to take action, and how it can be accomplished lawfully. The Plan sought to expand airspace awareness and protection activities while safeguarding the airspace, communications spectrums, individual privacy, civil liberties, and civil rights.
The Domestic Counter-Unmanned Aircraft Systems National Plan Recommendations
The Plan contained eight (8) key recommendations for action:
- Work with Congress to enact a new legislative proposal to expand the set of tools and actors who can protect against UAS by reauthorizing and expanding existing counter‑UAS authorities for the Departments of Homeland Security, Justice, Defense, State, as well as the Central Intelligence Agency and NASA in limited situations. The proposal also seeks to expand UAS detection authorities for state, local, territorial and Tribal (SLTT) law enforcement agencies and critical infrastructure owners and operators. The proposal would also create a Federally-sponsored pilot program for selected SLTT law enforcement agency participants to perform UAS mitigation activities and permit critical infrastructure owners and operators to purchase authorized equipment to be used by appropriate Federal or SLTT law enforcement agencies to protect their facilities;
- Establish a list of U.S. Government authorized detection equipment, approved by Federal security and regulatory agencies, to guide authorized entities in purchasing UAS detection systems in order to avoid the risks of inadvertent disruption to airspace or the communications spectrum;
- Establish oversight and enablement mechanisms to support critical infrastructure owners and operators in purchasing counter-UAS equipment for use by authorized Federal entities or SLTT law enforcement agencies;
- Establish a National Counter-UAS Training Center to increase training accessibility and promote interagency cross-training and collaboration;
- Create a Federal UAS incident tracking database as a government-wide repository for departments and agencies to have a better understanding of the overall domestic threat;
- Establish a mechanism to coordinate research, development, testing, and evaluation on UAS detection and mitigation technology across the Federal government;
- Work with Congress to enact a comprehensive criminal statute that sets clear standards for legal and illegal uses, closes loopholes in existing Federal law, and establishes adequate penalties to deter the most serious UAS-related crimes; and
- Enhance cooperation with the international community on counter‑UAS technologies, as well as the systems designed to defeat them.
Both DOJ and DHS expressed support for the Domestic Counter-UAS National Action Plan
Both DOJ and DHS were supportive of the Plan. Each of the agencies released statements in support of the Plan.
In the DOJ press release stated that, “The department strongly supports the Administration’s Counter-UAS National Action Plan and comprehensive legislative proposal transmitted to Congress on April 19 seeking the reauthorization of the department’s authority. Additionally, the department strongly supports the element of the National Action Plan incrementally extending relief from federal criminal laws to state, local, territorial, and tribal (SLTT) law enforcement entities to use technology to detect, and in limited circumstances, mitigate UAS threats under appropriate controls and Federal oversight. A third critical component of the plan is endorsement of the department’s legislative proposal that would fill a gap in federal criminal laws to prosecute the most malicious and dangerous uses of drones.”
DHS Secretary Alejandro N. Mayorkas publicy commented on the Biden Administration Plan, “The Biden-Harris Administration’s C-UAS National Action Plan and legislative proposal are vital to enabling DHS and our partners to have the necessary authorities and tools to protect the public, the President and other senior officials, federal facilities, and U.S. critical infrastructure from threats posed by the malicious and illicit use of unmanned aircraft systems. These threats are increasing at home and abroad, and the Plan and legislative proposal call for the reauthorization and expansion of DHS’s C-UAS authority to help keep our communities safe. The Plan and legislative proposal also support the safe integration of unmanned aircraft systems for recreational and commercial use.”
He continued, “DHS will continue to judiciously implement its C-UAS authorities, while protecting privacy, civil rights, and civil liberties. We look forward to working with Congress and key stakeholders across every level of government, in the private sector, and civil society on this critical Plan and related legislation.”
Proposed Counter-UAS Legislation- 117th Congress
Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act of 2022
After the release of the Plan by the Biden Administration, there were two key pieces of legislation introduced during the 117th Congress in 2022.
In late July, Senators Peters and Johnson introduced legislation in the 117th Congress that was titled, ‘‘Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act of 2022.’’
The 2022 proposal from Senators Peters and Johnson (S. 4687) sought to renew and expand existing authorities provided by the Preventing Emerging Threats Act of 2018 for the DOJ and DHS, including authorizing the DOJ and DHS to use existing authorities to protect the sixteen sectors of critical infrastructure in the United States.
The legislation recommended the expansion of Counter-UAS authorities to enhance the safety of the homeland, including authorizing the Transportation Security Administration (TSA) to proactively protect critical transportation infrastructure from the threats of malicious drones.
The legislation also recommended state and local law enforcement, as well as critical infrastructure operators, to use pre-approved drone detection technology. A pilot program would also be created to train certain Federal, state, and local agencies on the use of drone mitigation technology.
Counter-UAS Authority Extension and Transparency Enhancement Act of 2022
H.R. 8949, otherwise known as the Counter-UAS Authority Extension and Transparency Enhancement Act of 2022, was introduced by Representative Jerrold Nadler (D-NY) in September 2022.
The bipartisan legislation contains fewer measures than those recommended by the Biden Administration’s Domestic Counter-Unmanned Aircraft Systems National Action Plan.
Notably missing from the legislation is the recommended expansion of certain Counter-UAS authorities and technologies to state and local law enforcement, as well as critical infrastructure.
Kicking the Can Down the Road
During the 117th Congress, no Counter-UAS legislation was passed. The authorities for DHS and DOJ expired on October 5, 2022. The authorities were extended temporarily with continuing resolutions throughout the Fall.
In late December 2022, President Biden signed an almost $1.7 trillion government spending package after the bill cleared the House and the Senate. Included in the bill, which funded the U.S. government for the rest of fiscal year 2023, extended the Counter-UAS authorities for the DOJ and DHS until September 30, 2023. There were no provisions in the bill to expand efforts to address UAS threats that the administration recommended earlier in the year.
According to Section 547 of the bill signed by President Biden, “Section 210G(i) of the Homeland Security Act of 2002 (6 U.S.C. 124n(i)) shall be applied by substituting ‘September 30, 2023’ for “the date that is 4 years after the date of enactment of this section.” The previous legislation was enacted on October 6, 2018.
S. 1631– Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act of 2023
The Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act of 2023 shares a similar name to the original legislation proposed in July of 2022, The Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act of 2022.
There are similarities in the bill sponsors, title, and language. Like last year’s bill, this bill provides legislative relief to SLTT and owners and operators of airports and critical infrastructure to use radio frequency detection equipment that would otherwise be considered illegal. This would give these entities the ability to use a full range of authorized detection equipment with any required training, coordination, and licenses (if applicable). The bill also extends the authorities of DOJ and DHS from the Preventing Emerging Threats Act of 2018, and adds authorities to selected SLTT agencies to participate in a pilot mitigation program.
A line-by-line comparison of the 2022 and 2023 bills revealed some notable differences. The 2022 bill version recommended expanding authorities to the Transportation Security Administration. The 2023 version of the bill also included TSA, but added Homeland Security Investigations.
Summary of Significant Elements S. 1631
Significant elements of the Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act of 2023 include:
- Reauthorization of Counter-UAS Authority for the DHS, including U.S. Customs and Border Protection (CBP), the United States Secret Service (USSS), and the United States Coast Guard (USCG).
- Authorization of Counter-UAS Authority for the Transportation Security Administration (TSA) and Homeland Security Investigations (HSI).
- Reauthorization of Counter-UAS Authority for the DOJ, including the Federal Bureau of Investigation (FBI), United States Marshal Service (USMS), and the Federal Bureau of Prisons (BOP).
- Specifically, “protection of an airport or air navigation facility” was added to missions authorized for the Department of Justice.
- Added “the provision of security or protection support to critical infrastructure owners or operators, for static critical infrastructure facilities and assets upon the request of the owner or operator,” for both the Department of Justice and Department of Homeland Security.
- Provided authorities to SLTT to protect the following within their jurisdiction: National Special Security Events (NSSE) and Special Event Assessment Rating (SEAR) events or other mass gatherings; protection of critical infrastructure, including airports; protection of government buildings, assets or facilities; and protection of disaster response.
- Adds “contractor” under the definition of personnel authorized to perform duties that include safety, security, or protection of people, and facilities with the appropriate training and mission requirements met.
- Authority for Detection, Identification, Monitoring, Tracking, and Mitigation for authorized personnel with assigned duties that include the safety, security, or protection of people, facilities, or assets assigned to the DOJ and DHS. Legislative relief is provided for section 46502 of title 49, United States Code, and sections 32, 1030, 1367, and chapters 119 and 206 of Title 18, United States Code. A more detailed description of these authorities are included below in the description for the SLTT Pilot Program.
- Limited Authority for DOJ, DHS, SLTT law enforcement, and any owner or operator of an airport or critical infrastructure with assigned duties that include the safety, security, or protection of people, facilities, or assets to use authorized equipment to take actions that are necessary to detect, identify, monitor, or track an unmanned aircraft system or unmanned aircraft within the areas of responsibility or jurisdiction of the authorized personnel. Legislative relief is provided for sections 1030, 1367, and chapters 119 and 206 of Title 18, United States Code. Essentially, this means the authorities are limited to actions during the operation of an unmanned aircraft system, to detect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent, including by means of intercept or other access of a wire communication, an oral communication, or an electronic communication used to control the unmanned aircraft system or unmanned aircraft.
- Equipment authorized for unmanned aircraft systems detection, identification, monitoring, or tracking is limited to:
- Systems or technologies tested and evaluated by DHS or DOJ, including evaluation of any potential counterintelligence or cybersecurity risks;
- Are annually reevaluated for any changes in risks, including counterintelligence and cybersecurity risks;
- Have been determined by the Federal Communications Commission (FCC) and the National Telecommunications and Information Administration (NTIA) not to adversely impact the use of the communications spectrum; and
- Determined by the FAA not to adversely impact the use of the aviation spectrum or otherwise adversely impact the national airspace system; and
- Are included on a list of authorized equipment maintained by DHS in coordination with the DOJ, FAA, FCC, and NTIA.
- Authorizes DHS and DOJ to evaluate the potential benefits of an SLTT pilot program to mitigate drones that are assessed as a credible threat to the safety or security of a covered facility or asset.
- No more than 12 SLTT agencies per year for the five years of the pilot program.
- SLTT agencies would be under the direct oversight of either DOJ or DHS.
- Regular reporting to the appropriate Congressional committees in writing of mitigation authorities granted to SLTT, including a description of privacy or civil liberties complaints known to DHS or DOJ.
- Only equipment authorized by DHS and DOJ in coordination with the FCC, NTIA, and DOT (acting through the FAA)
- Authority for Detection, Identification, Monitoring, Tracking, and Mitigation for authorized personnel with assigned duties that include the safety, security, or protection of people, facilities, or assets assigned to the SLTT Pilot Program. Legislative relief is provided for section 46502 of title 49, United States Code, and sections 32, 1030, 1367, and chapters 119 and 206 of Title 18, United States Code. Essentially this provides the authorized agencies with authority to detect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent, including by means of intercept or other access of a wire communication, an oral communication, or an electronic communication used to control the unmanned aircraft system or unmanned aircraft; Warn the operator of the unmanned aircraft system or unmanned aircraft, including by passive or active, and direct or indirect, physical, electronic, radio, and electromagnetic means; Disrupt control of the unmanned aircraft system or unmanned aircraft, without prior consent of the operator of the unmanned aircraft system or unmanned aircraft, including by disabling the unmanned aircraft system or unmanned aircraft by intercepting, interfering, or causing interference with wire, oral, electronic, or radio communications used to control the unmanned aircraft system or unmanned aircraft; Seize or exercise control of the unmanned aircraft system or unmanned aircraft; Seize or otherwise confiscate the unmanned aircraft system or unmanned aircraft; and Use reasonable force, if necessary, to disable, damage, or destroy the unmanned aircraft system or unmanned aircraft.
- Training requirements will be established from criteria established by DHS and DOJ, in consultation with the Secretary of Transportation, the Administrator of the Federal Aviation Administration, the Chair of the Federal Communications Commission, the Assistant Secretary of Commerce for Communications and Information, and the Administrator of the National Telecommunications and Information Administration.
- The Attorney General, acting through the Director of the FBI may provide training to SLTT to mitigate a credible threat that a UAS poses to the safety or security of a covered facility or asset and establish or designate one or more facilities or training centers.
The legislation recognizes and emphasizes the complexity of the homeland security Counter-UAS mission, including ensuring that technology and tactics, techniques and procedures do not adversely impact the communications spectrum, privacy and civil liberty issues, safe airport operations, navigation, air traffic services, and the safety and efficient operation of the national airspace system.
Based on the language in the proposed legislation, the homeland security Counter-UAS mission will continue to be a collaborative effort between the DOJ, DHS, FCC, NTIA, and the FAA.
Privacy and Civil Liberties Considerations
The 2022 version of the bill contained language related to privacy and civil liberty protections. The 2023 bill continued to emphasize the importance of civil rights and civil liberties guaranteed by the First and Fourth Amendments to the Constitution of the United States.
The new version of the bill includes language that requires DHS and DOJ officers, employees, and contractors who are authorized to perform duties that include safety, security, or protection of people, facilities, or assets; or State, local, Tribal, or territorial (SLTT) law enforcement agencies to be “trained and certified to perform those duties, including training specific to countering unmanned aircraft threats and mitigating risks in the national airspace, including with respect to protecting privacy and civil liberties.”
In bill language related to ‘risk-based assessment,’ in addition to factors such as potential effects on the national airspace, the radio frequency spectrum, impact on infrastructure, and potential consequences to national security, to name a few, a factor that will need to be assessed are “Civil rights and civil liberties guaranteed by the First and Fourth Amendments to the Consitution of the United States.”
The additional language in the 2023 version of the bill may be related to concerns expressed publicly by organizations such as the Electronic Frontier Foundation (EFF), the Electronic Privacy Information Center (EPIC), and others.
The concerns ranged from overly broad definitions of terms used in the legislation, such as “credible threat” or “covered facility or asset,” to what information was being gathered by technology and how the information was being used.
Privacy protections were an essential component of The Preventing Emerging Threats Act of 2018. Additionally, DHS released a Privacy Impact Assessment (PIA) in July 2020. This PIA discussed measures to mitigate privacy risks and protect personally identifiable information (PII) during DHS’s use of C-UAS technologies during testing, evaluation, and operational deployments.
What will the future hold for Counter-UAS in the United States?
The drone threat is rapidly evolving, and the United States must act now to prepare federal and SLTT law enforcement and airport and critical infrastructure owners and operators to confront this challenge. The cost of inaction can significantly impact the safety and security of our homeland, decrease the public’s trust and perception of safety and security, and have a negative economic impact.
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