On August 17, the Federal Aviation Administration (“FAA”), the Department of Justice (“DOJ”), the Federal Communications Commission (“FCC”), and the Department of Homeland Security (“DHS”) issued a joint interagency advisory on the use of technology to detect and mitigate unmanned aircraft systems (“UAS” or “drones”) by non-federal public and private entities.
The disabling or destruction of a drone through physical force or electronic interference (such as jamming) is a federal crime. The joint advisory provides an overview of the federal laws and regulations that apply to various UAS detection and mitigation measures, which include not only criminal statutes enforced by DOJ, but also a range of laws and regulations administered by the FAA, FCC, and DHS.
As detailed in the joint advisory, the use of technology to track and monitor UAS may have numerous legal consequences, even when no action is taken to disable or interfere with a UAS. Accordingly, anyone involved in the development or potential use of UAS detection and mitigation technology should seek the advice of counsel to ensure compliance with the multitude of laws and regulations.
Federal Criminal Laws
Technology to detect, monitor, or track UAS likely uses some combination of radio-frequency (“RF”), radar, elector-optical (“EO”), infrared (“IR”), and acoustic capabilities, which may either physically detect UAS or detect UAS’ signals. According to the joint advisory, the physical detection of UAS (e.g. through radar) is less likely to implicate federal criminal laws, while technology that detects UAS signals or communications poses higher risks.
Specifically, the use of RF technology in UAS detection could implicate the Pen/Trap statute and the Wiretap Act:
- The Pen/Trap Statute, 18 U.S.C. §§ 1321-1327, prohibits the use of installation of a device or process that records, decodes, or captures non-content dialing, routing, addressing, or signaling information, absent a court order or statutory exception.
- The Wiretap Act, 18 U.S.C. §§ 2510 et seq., prohibits the intentional interception of the content of any electronic communication, absent a court order or statutory exception.
The statutory exceptions under both statutes apply in very limited circumstances, e.g. to law enforcement in an emergency situation when a court order cannot be obtained.
As one would expect, the use of UAS mitigation technology—such as jamming, spoofing, hacking, and physical disruption or disabling—poses even greater risks under federal criminal law.
Jamming, spoofing, and hacking, defined in the joint advisory as “non-kinetic solutions,” can implicate the laws applicable to UAS detection, as well as several other federal laws:
- The Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, which prohibits intentionally accessing a “protected computer,” a term broadly defined by the CFAA that could include UAS systems, and obtaining information or causing damage without authorization.
- Interference with the operation of a satellite, 18 U.S.C. § 1367, which could apply to obstructing or hindering GPS signals to a UAS or a ground control station, or interfering with other signals between a UAS and a satellite.
- Willfully or maliciously injuring or destroying means of communication operated or controlled by the United States, 18 U.S.C. § 1362, which could apply if the UAS mitigation technology impairs any frequency or transmissions, including cellular or WiFi signals, that are used by the federal government or by the military.
Non-kinetic solutions and “kinetic solutions,” such as nets, projectiles, and lasers, could implicate the following laws:
- The Aircraft Sabotage Act, 18 U.S.C. § 32(a), which prohibits damaging, destroying, or disabling aircraft.
- The Aircraft Piracy Act, 49 § 46502, which prohibits seizing or exercising control of an aircraft with wrongful intent.
Aviation Safety and Security Laws
As explained in the joint advisory, UAS detection and mitigation could implicate several areas regulated by the FAA, including:
- Use of airspace, 49 U.S.C. § 40103, under which the FAA must ensure that aircraft, including UAS, may move through the airspace without improper interference.
- Airport operating certificates, 49 U.S.C. § 44706, which would cover the installation and use of UAS detection and mitigation technology by airport operators.
- Structures interfering with air commerce, 49 U.S.C. § 44718, which could encompass equipment that interferes with aircraft and navigational aids. The installation of such equipment may necessitate an aeronautical study by the FAA of potential hazards to air navigation.
- Airport grant assurances, 49 U.S.C. § 47107, which may prohibit federal grant recipients from introducing hazards that cannot be mitigated.
Airports considering the installation or use of UAS detection and mitigation technology must also consider the intersection with air transportation security programs overseen by the Transportation Security Administration (“TSA”).
Radiofrequency Spectrum Laws
According to the joint advisory, any technology involving the emission of radio waves, including radar, must comply with FCC laws and regulations, including the following areas:
- FCC licensing: certain transmissions may require an FCC license. For instance, the use of radar to detect UAS requires a Radiolocation Service license from the FCC.
- Jammer restrictions: most non-federal entities are prohibited from manufacturing, selling, and using devices that interfere with radio reception, including wireless communications, unless the devices comply with FCC regulations. 47 US.C. § 302a.
- Interference with radio communications: the willful or malicious interference with any radio communications of any station licensed by the FCC or operated by the U.S. Government is prohibited. 47 U.S.C. § 333.
Using technology to interfere with and even just to detect UAS can implicate numerous federal laws and expose the user to criminal and civil liability. Furthermore, the potential legal implications do not end there. As noted in the joint advisory, the guidance does not cover state and local laws, nor the potential for civil liability for damaging persons or property. As UAS operations become more widespread and the demand for UAS detection and mitigation grows, anyone involved in the manufacture and use of this technology must work with experienced counsel to ensure compliance with the various legal and regulatory frameworks.