Last month, Sen Lee (R,UT) introduced S 896, the Stopping Harmful Incidents to Enforce Lawful Drone Use (SHIELD U) Act. The bill would give airport operators the authority to conduct counter-drone activities at commercial airports. It would also allow State and local law enforcement personnel broad authority to conduct counter drone operations with little federal restrictions. No additional funding is authorized by this legislation.
The wording of the bill is identical to S 4801 that was introduced in the last session. No action was taken on that bill.
Definitions
Section 2 of the bill provides definitions for seven key terms used in the legislation. Four of the terms are defined by reference current US Code definitions. The three remaining definitions are for:
The threat definition is limited to property under the jurisdiction of:
A commercial service airport, or
State or locality
The definition of ‘under the jurisdiction of State or locality’ is not provided.
Airport Counter UAS Requirements
Section 3 of the bill would allow DHS, airport law enforcement agencies, or State and local law enforcement agencies to “carry out Counter-UAS activities for purposes of detecting, identifying, and mitigating the threats posed by an unmanned aircraft or unmanned aircraft system to the safety or security of the airport”. Such activities will only be carried out “with the consent of, in consultation with, and with the participation of, the airport operator.”
In developing the use of non-kinetic equipment for counter-UAS operations, DHS and other authorized agencies will consult with the Federal Communications Commission (FCC) and the National Telecommunications and Information Administration (NTIA).
Off-Airport Counter UAS Authorization
Section 4 of the bill provides authority for a State, as well as the State and local law enforcement agencies in the State, to “carry out Counter-UAS activities for purposes of detecting, identifying, and mitigating the threats posed by an unmanned aircraft or unmanned aircraft system within the jurisdiction of the State or locality.”
Subsection (d) amends 49 USC 44802, Integration of civil unmanned aircraft systems into national airspace system. It adds a paragraph (4) to §44802(b):
“(4) Permit a process for an applicable State or local law enforcement agency to notify and coordinate with the Federal Aviation Administration on actions being taken by the State or local law enforcement agency to exercise the Counter-UAS activities authority established under section 4(a) of the SHIELD U Act.”
It also adds a paragraph (5) to §44802(c):
“(5) establish a process that allows for collaboration and coordination between the Federal Aviation Administration and the law enforcement of a State or local government with respect to the use of the Counter-UAS activities authority established under section 4(a) of the SHIELD U Act”
That ‘coordination’ is further outlined in §4(e) of the bill. That section requires the FAA to establish a process under which:
The law enforcement agency of a State or local government may notify the FAA of an active threat posed by an unmanned aircraft or unmanned aircraft system within the jurisdiction of the State or local law enforcement agency and the intent of the agency to facilitate Counter-UAS activities,
The FAA, based on notice made pursuant to subparagraph (A), shall issue immediate warnings to operators of both manned and unmanned aircraft operating within the area of airspace where the law enforcement agency’s Counter-UAS activities are taking place, and
The FAA and the State and local law enforcement agency notify UAS operators and manned operators in the area that an area of airspace is clear once the State and local law enforcement have concluded the Counter-UAS activities to mitigate the threat.
DHS Counter UAS Training
Section 6 of the bill amend 6 USC 464(c), Federal Law Enforcement Training Centers. It adds a new paragraph (10) requiring the DHS Federal Law Enforcement Training Centers (FLETC) to “develop and implement homeland security and law enforcement training curricula related to the use of Counter-UAS activities”. The training would be available to “Federal, State, local, Tribal, and territorial law enforcement and security agencies and private sector security agencies”. The curricula would include:
Training on the use of both kinetic and non-kinetic equipment,
Training on the tactics used to detect, identify, and mitigate a threat from an unmanned aircraft or unmanned aircraft system, and
Such other curricula or training the Director believes necessary
Authorizing Jamming Technology
Section 7(1) of the bill would amend 47 USC 301, License for radio communication or transmission of energy. It would add a new subsection (b), Exception for an Unmanned Aircraft and Unmanned Aircraft System. It provides definitions of the terms ‘covered equipment’, ‘unmanned aircraft’ and ‘unmanned aircraft systems’.
Section 7(2) would then amend 47 USC 302a, Devices which interfere with radio reception. The new (b)(2) would except from the radio interference prohibitions in subsection (a) “actions taken by State or local law enforcement or the law enforcement agency of a commercial service airport using covered equipment in consultation with the Commission to detect, identify, or mitigate a threat posed by an unmanned aircraft or unmanned aircraft system.”
Moving Forward
Lee is not a member (this session) of the Senate Commerce, Science and Technology Committee to which this bill is assigned for consideration. This means that there is not enough influence to see the bill considered in Committee. I suspect that the relatively unrestricted authorization for State and local law enforcement officials to conduct counter-drone operations will draw at least some organized opposition, whether it would be enough to stall consideration of the bill remains to be seen.
This bill should be too controversial for it to be considered by the full Senate as a stand-alone bill, there is a remote chance that the bill could be offered as an amendment to the NDAA being considered this week, but I doubt that Lee would be able to garner support of the Democratic leadership for the bill to be considered. If Lee is firmly enough behind this bill, he could be expected to use a vote on the bill as an amendment as a bargaining chip to get his support for a cloture vote or unanimous consent agreement. That would only occur if this was one of his most important (to him) pieces of proposed legislation and I do not think that it is.
Commentary
Counter-UAS operations would seem to violate a number of current federal laws, including:
49 USC 46502 (air piracy),
18 USC 32 (destruction of aircraft),
18 USC 1030 (computer fraud),
18 USC 1367 (operation of a satellite),
18 USC Chapter 119 (communications interception), and
18 USC Chapter 206 (trap and trace).
Instead of specifical exempting counter-drone operations from concerns about those statute provisions, this bill uses two broad phrases: ‘Notwithstanding any other provision of law’, and ‘in a manner consistent with the Fourth Amendment to the Constitution of the United States’. The first is so broad as to remove any legal restrictions against counter-drone operations, technically even allowing operations against military drones transiting non-military airspace. To counter that, the second requirement would seem to require the use of a search warrant to be allowed to seize a drone, but it is not clear that the language is specific enough to require a search warrant to be provided before any counter-UAS operations are undertaken, short of seizing the drone once it is forced to land.
Furthermore, I think that the provisions of this bill allowing State and local law enforcement agencies to take actions against aircraft anywhere in their jurisdictions is too broad an expansion of control over the airspace of the United States. At the very least it should be restricted to critical infrastructure facilities and other areas where the FAA has implemented air space restrictions against drone operations. Operations anywhere else would interfere with the FAA management of the national air space.