The worldwide uncrewed aircraft system (UAS) threat is evolving daily. It is marked by the increasing use of this technology by both state and non-state actors for nefarious purposes, including surveillance, smuggling contraband, attacks, sabotage, disruption, and terrorism, to name a few. The United States has been slow to evolve with a threat that knows no borders, primarily held up by a slow-moving Congress, with no new counter-UAS legislation passed since 2018. This article explores two significant concerns with the recently introduced House Counter-UAS legislation.
Although many portions of the bipartisan House legislation warrant further exploration, this article identifies two primary sections that, on the surface, expand counter-UAS authorities, something that law enforcement, security professionals, and the counter-UAS industry have wanted for years. However, when you look behind the curtain a bit further, they miss the mark to the detriment of the security of the United States.
Before we explore the concerns, why is this so complicated in the first place? Without getting into a lengthy legal discussion, plus the fact that I’m not an attorney, below are a few bullet points on why there are currently limitations on using some counter-UAS technologies.
- The functionality of some counter-UAS technologies violates existing federal laws.
- Some counter-UAS technologies may impact the communications spectrum.
- Some counter-UAS technologies may increase the risk to the national airspace.
- Kinetic and non-kinetic counter-UAS mitigation systems have potential secondary impacts on the national airspace, critical infrastructure, mass gatherings, and other protected assets.
The Departments of Justice, Homeland Security, Energy, and Defense have legislative relief from existing federal laws and have worked closely with the Federal Aviation Administration (FAA), the Federal Communications Commission (FCC), the National Telecommunications and Information Administration (NTIA), and others to deploy counter-UAS technology and minimize potential risks.
An excellent reference to understand more about the current legalities surrounding the acquisition and deployment of counter-UAS technologies in the U.S. is:
This article explores the bipartisan House proposal to expand authorities to detect, identify, monitor, and track UAS (counter-UAS detection) and the expansion of mitigation authorities to State law enforcement agencies.
If you are interested in reading both bills in full, please visit:
Ley de Protección del Territorio Nacional frente a las Amenazas de los Sistemas Aéreos no Tripulados de 2023 (S. 1631) and
Counter-UAS Authority Security, Safety, and Reauthorization Act of 2024 (House)
Authorities to Detect, Identify, Monitor and Track UAS
The House C-UAS bill requires the FAA, DoJ, and DHS to establish an application process to ” authorize the acquisition, deployment, and operation of an approved counter-UAS detection system, equipment, or technology by a Federal, State, local, territorial, or Tribal law enforcement agency, in partnership with a covered entity, at a covered site.”
The bill further states that there must be “a written agreement between the covered entity and a Federal, State, local, or Tribal law enforcement agency to operate such approved counter-UAS detection system, equipment, or technology at a covered site on behalf of such covered entity.”
Commentary
Before further comments, it is necessary to define a few things to put everything into context.
In Section 2 of this bill, a “covered site” is defined as a fixed site facility as described in section 2209 of the Ley de Extensión, Seguridad y Protección de la FAA de 2016; the location of a large public gathering described in section 44812(c) of title 49, United States Code; or the site with respect to which a flight restriction is maintained pursuant to section 521 of division F of the Consolidated Appropriations Act, 2004.
Section 2 also defines a “covered entity” as the owner or proprietor of a covered site and, in the case of a public gathering, the organizing entity of such gathering.
The term “counter-UAS detection system, equipment, or technology” is not defined in the proposed House bill. For this article, we will use the Guía tecnológica de sistemas aéreos no tripulados from the Department of Homeland Security as a reference. This guide identifies four modalities (or types) of sensors commonly used in C-UAS operations to detect, locate/track, and classify/identify UAS: radar, passive RF, Electro-Optical and Infrared (IR) cameras, and acoustic sensors.
The House proposes that a covered site or entity can procure counter-UAS detection technology only after applying for and receiving approval from the FAA, DoJ, and DHS. Further, the approved counter-UAS detection technology can only be operated by Federal or SLTT law enforcement.
For example, based on the above, if a petrochemical plant (or other covered site) wants to purchase any one or a combination of acoustic sensors, EO/IR cameras, radars, or RF detection technology to provide airspace awareness around its facility, it must first request federal government approval and secure a written agreement with a trained and certified Federal or SLTT law enforcement agency to operate the equipment.
Where do I begin with this? This extreme restriction appears to be based on a lack of understanding of the functionality of UAS and counter-UAS detection technologies and misinformed privacy and civil liberty concerns. This position is highlighted by earlier bill text related to the reporting of counter-UAS activities where there are requirements to document the frequency and nature of instances in which “communications” were intercepted or acquired and the approximate number and nature of “incriminating communications” intercepted.
Communications and incriminating communications were also not explicitly defined in the bill text. However, there is language in the bill that leads me to believe the House is referring to the “electronic communication used to control the unmanned aircraft system or unmanned aircraft.” What type of electronic communication used to control the UAS is of concern? The drone’s altitude? The control stick inputs? The drone’s serial number? The drone or pilot’s location? The shutter speed settings of the onboard camera? Additional information and context are needed to understand what the House committees responsible for this bill’s text are trying to achieve.
It should be noted radars, acoustic sensors, and EO/IR cameras can’t intercept RF communications between the ground control station and the drone. Some counter-UAS RF detection technologies can demodulate the RF signal; however, the information broadcast between the ground control station and the drone and subsequently demodulated (if applicable) involves the drone’s command and control, drone telemetry, and the maintenance of the drone’s payload. I’m unaware of any drone or ground control station that transmits communications such as SMS text messages, emails, or personally identifiable information (PII) as part of the operation of the drone and the maintenance of its onboard payload. Privacy concerns regarding the use of counter-UAS technology should be significantly minimized.
Another shortfall of the bill is that it does not consider instances where, in the absence of supporting a covered entity, SLTT agencies may want to acquire and deploy their own counter-UAS detection technology as needed to support VIP operations, UAS-related investigations, events, or other public safety operations where counter-UAS detection technology isn’t readily available.
Additionally, requiring covered entities to apply to the federal government to use and deploy otherwise legal counter-UAS technologies shouldn’t be necessary. The only technology that should require federal government approval is the deployment of active radar technologies, a process that the FCC has already created- see Applying for Special Temporary Authority.
One last point—can you imagine the cost of hiring additional SLTT law enforcement to staff a covered site with 24/7/365 operations to detect drones? What about areas with many covered sites within the jurisdiction of a specific law enforcement agency? Will there be enough SLTT resources to staff all of the covered sites? We all know the answer to this rhetorical question.
There is no reason why counter-UAS detection technologies can not be monitored by existing covered entity security staff along with the other security functions and technologies (some of which include EO/IR cameras) already being monitored by the team.
Counter-UAS Pilot Mitigation Program Concept for SLTT
The House bill proposes that no later than 180 days after the first determination that a counter-UAS mitigation system meets the requirements of section 44810(e) of title 49, United States Code, DHS, DoJ, and the FAA shall establish a pilot program at not more than five (5) covered sites to assess the efficacy of approved counter-UAS mitigation systems at such covered sites and sites and determine the appropriate policies, procedures, and protocols necessary to allow State law enforcement agencies (in coordination DHS, DoJ and the FAA) to acquire, deploy, and operate approved counter-UAS mitigation systems and mitigate unauthorized UAS operations on behalf of covered entities.
In carrying out this section, DHS, in coordination with the DoJ and the FAA, shall establish an application process to authorize the acquisition, deployment, and operation of an approved counter-UAS mitigation system, equipment, or technology by a State law enforcement agency, in partnership with a covered entity at a covered site.
Later in the bill text, the House proposes that not later than three years after approved counter-UAS mitigation systems, equipment, or technology are deployed at the five covered sites selected, the DHS, DoJ, and FAA shall review the results of the pilot program and, if appropriate, take such actions as may be necessary to revise or expand counter-UAS system mitigation authorities, subject to the availability of trained personnel, to not more than 20 covered sites under the pilot program.
Commentary
The DoJ and DHS have had the authority to deploy counter-UAS detection and mitigation technology for almost six years. In public comments, the DHS has noted that their agency has deployed counter-UAS technology hundreds of times since 2018 alone. If I were to guess, the DoJ, DHS, and other stakeholders, such as the FCC and FAA, already understand the policies, procedures, and protocols necessary to successfully deploy this technology anywhere in the United States. Dipping our toes into the water at five covered sites for a year or two won’t yield any significant new lessons. It is time to roll up our sleeves and get to work.
The House bill only authorizes a State law enforcement agency (not local, Tribal, or territorial) to acquire, deploy, and operate counter-UAS mitigation technology on behalf of a covered entity at a covered site. Initially, the number of covered sites where counter-UAS mitigating technology is deployed is capped at five but may increase to 20 sites under the program.
This bill language doesn’t consider the sheer number of locations that would fall under the definition of a covered site found throughout the U.S. or that some covered sites, such as a stadium or mass gathering venue, do not require 24/7/365 protection. Some federal agencies, such as the DHS or DoJ, often deploy counter-UAS mitigation technologies on a temporary fixed-site basis based on short-term event and location-specific security requirements or UAS threats.
While I understand the logic of a State law enforcement agency receiving the training and certification to use counter-UAS mitigation technology, as the agency could operate statewide, it will create more headaches than it solves. For example, a large metropolitan police agency, such as the New York Police Department, should not be required to rely on the available personnel and resources of the New York State Police to protect significant events and venues within New York City, such as the Macy’s Thanksgiving Day Parade, New York City Marathon, New Year’s Eve at Times Square, U.S. Open Tennis, World Series at Yankee Stadium or Citi Field, etc.
In contrast, the Senate counter-UAS bill allows State, local, Tribal, and territorial law enforcement agencies to participate in the counter-UAS pilot mitigation program. Further, the Senate bill provides for 12 SLTT agencies to be designated for training and certification each year, provided that not more than 60 SLTT are designated over the five years of the pilot program.
Limiting the pilot program to covered sites and not trained and certified SLTT law enforcement agencies significantly limits the number of sites and events that can be covered with counter-UAS mitigation technologies. It also inhibits the ability of SLTT agencies to protect their local communities. It is reasonable to assume that an SLTT agency trained and certified in the deployment and operation of the technology would be required to follow established processes by the FAA, DHS, DoJ, and the FCC to deploy and operate this technology. This concept would allow those agencies to successfully deploy or use the technology within their areas of jurisdiction with oversight by stakeholder federal agencies.
Also, don’t forget eleven U.S. cities will host FIFA World Cup 2026 matches in two years, and in four years, the 2028 U.S. Olympics, hosted by Los Angeles, will have more than 80 venues. The House legislation will limit airspace awareness and protection activities at dozens of locations for these two significant events alone.
We must get this next legislation right, as we may not get another opportunity to expand the counter-UAS authorities of federal and SLTT agencies to protect the homeland for another four to six years.
Post Image- Aerial view of the Los Angeles Memorial Coliseum. This venue will host the Opening Ceremony and the Track and Field competitions of the 2028 Olympic Games in Los Angeles. (Post Image Credit: Adobe Stock by Marcus Jones)
