Unmanned aircraft systems (UAS) technology is poised to revolutionize businesses across industries and fulfill consumer demands for new and innovative ways to receive goods and services. Like any new and developing technology, it also presents unique challenges.

While safety and security mechanisms are core to industry’s ongoing UAS technology development, federal law enforcement must be equipped to address threats posed by malicious operators, just as it is equipped to respond to threats posed by those who misuse other technologies — from the internet to connected devices.

The policy debate around UAS countermeasures includes important questions about the safety of air navigation, interagency coordination, and privacy and civil liberties, including Fourth and Fifth Amendment protections. Therefore, it also involves a myriad of stakeholders, from law enforcement to the military and lawmakers, regulators, industry, and privacy and consumer advocates.

Congress Weighs In

Congress first took steps in 2016 to authorize federal entities to engage in UAS countermeasures operations that otherwise would be prohibited by Title 18 of the United States Code, including damaging, destroying or disabling an aircraft. FY17 and FY18 defense authorization bills granted the Departments of Defense (DOD) and Energy (DOE) authority to take enumerated counter-UAS actions to protect against threats to safety or security of DOD and DOE facilities and assets, notwithstanding Title 18. These provisions have served as the framework for subsequent proposals to expand the federal government’s authorities.

In 2017, the administration sought to expand these authorities to all federal Departments and agencies, but its legislative proposal was never introduced on Capitol Hill. Earlier this year, the administration revised its proposal to seek authorities for the Departments of Homeland Security (DHS) and Justice (DOJ). Since then, the bipartisan leadership of the Senate Homeland Security and Governmental Affairs Committee introduced and advanced out of committee legislation largely adapted from the administration’s revised proposal. House Homeland Security Committee Chairman Mike McCaul (R-Texas) introduced a similar but more tailored bill. Additionally, McCaul’s committee advanced a bill by Rep. Scott Perry (R-Penn.) that directs DHS to establish a countering UAS coordinator, an effort to improve the decision-making process that has been a source of frustration for lawmakers and industry alike. With just a few months remaining in the 115th Congress, each of these bills remains pending.

Jurisdictional Roadblocks Loom

If these or similar bills are to move forward this year, however, they likely would do so before the Federal Aviation Administration (FAA) implements remote identification and tracking requirements that most federal government officials and industry leaders believe should be a prerequisite for any additional countermeasures authorities. In order to safely and responsibly exercise any countermeasures authorities, law enforcement must be able to identify and assess what, if any, threats a UAS poses. FAA projects it will not issue a proposed rule until spring 2019, but it also is grappling with a loophole, which only Congress can close, that precludes it from imposing regulations on all UAS operators. These issues are outside the jurisdiction of the Homeland Security Committees.

Decoupling of Johnson-McCaskill Bill?

As detailed in our recent FAA reauthorization outlook, a modified version of the Johnson-McCaskill bill likely will be adopted as an amendment to the Senate’s FAA reauthorization bill if it comes to the floor. The Johnson-McCaskill bill aims to provide the Departments of Homeland Security and Justice authorities similar to those granted to the Departments of Defense and Energy, to utilize limited UAS countermeasures operations typically prohibited by federal law.

However, it is very possible that Congress will need to enact another short-term extension of FAA authorities before Sept. 30. Depending on the duration of an extension — and given the bipartisan, bicameral support for bestowing these authorities on the Departments of Homeland Security and Justice — there may be an effort to decouple it from FAA reauthorization and move it as separate legislation.