HR 5366 Introduced – UAS Interdiction

Last month Rep. Hartzler (R,MO) introduced HR 5366, the Safeguarding America’s Skies Act of 2018. The bill would authorize DHS and DOJ personnel to take actions to interdict unmanned aerial systems around selected critical infrastructure facilities.

Authorized Actions

The bill would add a new section to 18 USC would give the Secretary of Homeland Security and the Attorney General the authority to “authorize officers, employees, and contractors of the department assigned with duties that include safety, security, or protection of personnel, facilities, or assets of the department” to take actions to mitigate a threat “that an unauthorized UAV poses to the safety or security of a covered facility or asset” {new §28(a)}. The authorized actions include {new §28(b)}:

• Detect, identify, monitor, and track, without prior consent, a UAV, to evaluate whether the UAV poses a reasonable threat to the safety or security of a covered facility or asset

• Warn the operator of the UAV;

• Redirect, alter control, disable, disrupt, seize, or confiscate, without prior consent, a UAV that poses a reasonable threat, including by intercepting, substituting, or disrupting wire, oral, electronic, or radio communications or signals transmitted to or by UAV;

• Use reasonable force to disable, disrupt, damage, or destroy a small unmanned aircraft, unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that poses a reasonable threat to the safety or security of a covered facility or asset.

• Conduct research, testing, training on, or evaluation of any equipment, including any electronic equipment, to determine its capability and utility to enable (sic).

The definition of the term ‘covered facility or asset’ describes facilities designated by the Secretary or Attorney General that could include {new §28(h)(2)(C)}:

• Buildings and grounds leased, owned, or operated by or for the Federal Government, including Federal Facility protection operations;

• Authorized protective operations, including but not limited to the protection of Federal jurists, court officers, witnesses, and other persons;

• Penal, detention, correctional, and judicial operations;

• National Security Special Events, Special Event Assessment Ratings Events, or other mass gatherings or events that are reasonably assessed by the Department of Justice to be a potential target for terrorism or other criminal activity;

• Active Federal law enforcement investigations;

• Operations that counter terrorism, narcotics, and transnational criminal organizations;

• Securing authorized vessels, whether moored or underway;

• Protection operations pursuant to section 3056;

• Critical infrastructure;

• Emergency Response Operations;

• National Disaster Areas, Natural, or Hazardous Disaster Areas if it is determined by the • Secretary of Homeland Security that unauthorized access to the airspace would restrict recovery efforts;

• Other areas identified by the President.

The other key term ‘critical infrastructure’ is defined {new §28(h)(6)} by reference to 18 USC 2339D that uses the broad definition of “systems and assets vital to national defense, national security, economic security, public health or safety including both regional and national infrastructure” instead of one of the more restrictive definitions {see for example 42 USC 5195c(e)} that uses the phrase “…so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact…”.

The bill would provide certain restrictions on the actions authorized to be taken. In addition to specific privacy restrictions outlined in the new §28(3) the bill would also require DHS and DOJ to {new §28(a)}:

• Avoid any infringement of the privacy and civil rights of the people of the United States and the freedom of the press consistent with the First and Fourth Amendments, including with regard the testing of any equipment and the interception or acquisition of communications;

• Limit the geographic reach and the duration of such actions to only those areas and timeframes that are reasonably necessary to address a reasonable threat; and

• Use reasonable care not to interfere with non-targeted manned or unmanned aircraft, communications, equipment, facilities, or services.

Information Disclosure

The new §28(d) provides that:

“Information pertaining to the technology, procedures, and protocols used to carry out this section, including any regulations or guidance issued to carry out this section, shall be exempt from disclosure under section 552(b)(3) of title 5 and exempt from disclosure under State and local law requiring the disclosure of information.”

DOT Action Required

The new §28(b)(5) would require DOT within one year to “issue a final rule requiring remote identification and tracking of UAVs, including UAVs for recreational use, to ensure that cooperative aircraft are identified”.

Other 18 USC Amendments

Section 2(c) of the bill amends various other portions of 18 USC to exempt actions taken under the proposed §28. These include:

• 18 USC 32 - Destruction of aircraft or aircraft facilities;

• 18 USC 1030 - Fraud and related activity in connection with computers;

• 18 USC 1632 - Communication lines, stations or systems;

• 18 USC 1367 - Interference with the operation of a satellite;

• 18 USC Chapter 119 - Wire and Electronic Communications Interception and Interception of Oral Communications; and

• 18 USC Chapter 206 - Pen Registers and Trap and Trace Devices

Moving Forward

Neither Hartzler nor her two co-sponsors {Scott (GA) and Hanabusa (HI)} are members of any of the three committees (Judiciary, Homeland Security, and Transportation and Infrastructure) to which this bill was assigned for consideration. This means that the bill is unlikely to receive consideration in any of the committees. I suspect that even if it were considered in committee it would not receive majority support; it is too radical a change in the way that aircraft are protected in law to receive the necessary support.

Commentary

For about a year now I have been advocating for changes to US statutes to specifically allow for interdiction of drones over high-risk chemical facilities (and other critical infrastructure). This bill provides a good look at just how complicated that type legislation could be. Section 2(c) of the bill provides a pretty good insight into what laws might have to be revised to allow for the interdiction of UAS.

BTW: You can see my effort to craft a more limited drone interdiction authorization here.

The bill takes an odd turn when it only allows agents of the United States (employees and contractors of DHS and DOJ) to interdict UAS. I see this as a method to keep tight control of the technology and weapons involved. Unfortunately, this would probably result in as many problems as it would solve. Neither DHS nor DOJ has enough manpower to assign UAS control teams to critical public buildings on a long-term basis, much less privately owned critical infrastructure. This would mean that both agencies would have to have UAS response teams that could be tasked to support (on a short-term response basis) individual sites that are having (or reasonably expect to have UAS overflight problems that would potentially affect the security of the site or the safety of personnel on the site.

Another odd provision is found in the information disclosure paragraph. While I certainly understand the crafters concerns about the protection of information obtained during the unintended interception of communications with UAS that really should not be intercepted under the rules envisioned by this bill. Unfortunately, the crafters either poorly worded the paragraph or they specifically intended DHS and DOJ to write the rules required by this bill without sharing those rules with the public. I really hope it is an English usage problem and not an attempt at specifying unnecessary government secrecy.