U.S. Military Authorized to Take Down Civilian Drones

Following a public debate regarding the lack of authority for the U.S. military to take down civilian unmanned aircraft systems (also known as drones or “UAS”) over bases—see previous UAS Insights coverage here—the Department of Defense (“DOD”) released new guidance providing additional authority for military bases to protect themselves from potentially threatening drone operations.  This new authority again highlights the complicated legal issue of drone defenses, Federal Aviation Administration’s (“FAA”) enforcement of airspace regulations, and the desire of certain entities to prevent UAS overflights.

The DOD released classified guidance explaining how the military should interact with civilian drone operations above bases, and a spokesman stated that bases “retain the right of self-defense.”  According to the DOD, the guidance provides flexibility on how to respond to drone airspace incursions, but some of the options include tracking, disabling, and destroying the aircraft.

This DOD guidance came just weeks after a U.S. Air Force general publicly discussed drone incursions over Air Force bases, and referenced a near-miss between a civilian drone and an F-22 fighter jet.

The FAA prohibits drone operations above and 400 feet within the lateral boundaries of 133 military facilities across the United States.  The FAA issued these prohibitions earlier this year pursuant to the FAA’s authority under 14 C.F.R. §99.7, “Special Security Instructions,” and the restrictions appear on the FAA’s drone airspace smartphone app, B4UFLY.

The military’s new approval to destroy drones is noteworthy because a federal law criminalizes such action.  18 U.S.C. §32 authorizes fines and imprisonment for up to 20 years to whoever willfully “damages, destroys, disables, or wrecks any aircraft.”  Federal law confirms that UAS are aircraft, although it does not appear that the federal government has utilized this statutory prohibition to prosecute anyone for damaging or destroying a UAS.  A handful of high profile cases “drone shootdown” cases have made news in recent years.

Conversely, corporations and other organizations across the country are seeking additional approval and authority to prevent drone overflights for security and privacy purposes.  Section 2209 of the FAA Extension, Safety, and Security Act of 2016 directed the Secretary of Transportation and the FAA to establish a process to accept petitions to prohibit or restrict UAS operations over critical infrastructure and other facilities. So far, the FAA has not unveiled such a process.