Earlier this month Sen. Johnson (R,WI) introduced
S 2836,
the Preventing Emerging Threats Act of 2018. The bill would provide somewhat
limited authority to DHS and DOJ to mitigate the threat “that an unmanned
aircraft system or unmanned aircraft poses to the safety or security of a
covered facility or asset” {new
§210G(a)}.
In many ways this bill is similar to
HR
5366.
Authorized Actions
This bill would amend the Homeland Security Act of 2002 by
adding a new section, §210G.
It would authorize DHS and/or DOJ to take the following actions {§210G(b)(1)}:
• Detect, identify, monitor, and
track the unmanned aircraft system or unmanned aircraft, without prior consent,
including by means of intercept or other access of a wire communication, an
oral communication, or an electronic communication used to control the unmanned
aircraft system or unmanned aircraft;
• Warn the operator of the unmanned
aircraft system or unmanned aircraft, including by passive or active, and
direct or indirect physical, electronic, radio, and electromagnetic means;
• Disrupt control of the unmanned
aircraft system or unmanned aircraft, without prior consent, including by
disabling the unmanned aircraft system or unmanned aircraft by intercepting,
interfering, or causing interference with wire, oral, electronic, or radio communications
used to control the unmanned aircraft system or unmanned aircraft;
• Seize or exercise control of the
unmanned aircraft system or unmanned aircraft;
• Seize or otherwise confiscate the
unmanned aircraft system or unmanned aircraft; or
• Use reasonable force to disable, damage, or destroy
the unmanned aircraft system or unmanned aircraft.
The definition of ‘covered facility or asset’ describes
facilities designated by the Secretary or Attorney General that directly
relates to {new §210G(k)(3)(C)}:
• Specific DHS missions related to
Coast Guard and US Customs and Border Protection security operations,
protection operations of the Secret Service, or protection of federal property
under 40 USC 1315;
• Specific DOJ missions related to
FBI and Marshals Service protection operations, Federal Bureau of Prisons operations,
or protection of DOJ facilities and
Federal Courts;
• Specific DHS or DOJ missions
related to National Special Security Events and Special Event Assessment Rating
events, protection of people and property at mass gatherings (when requested by
State, local or tribal governments), active Federal law enforcement
investigations, emergency responses, or security operations, or when a national
security threat has been identified.
The authority to undertake these actions would expire five
years after the legislation is adopted with a one-time presidential authority
to extend that authority for 180-days.
UAS and Critical Infrastructure Assessment
Paragraph 210G(l) would require DHS to conduct an assessment
of the threat of UAS to critical infrastructure and domestic large hub
airports. That assessment would include {new §210G(l)(1)}:
• An evaluation of current Federal
and State, local, or tribal law enforcement authorities to counter the threat
identified;
• An evaluation of the knowledge
of, efficiency of, and effectiveness of current procedures and resources available
to owners of critical infrastructure and domestic large hub airports when they
believe a threat from unmanned aircraft systems is present;
• An assessment of what, if any,
additional authorities the Department needs to counter the threat identified;
and
• An assessment of what, if any,
additional research and development the Department needs to counter the threat.
Moving Forward
Johnson is the Chair of the Senate Homeland Security and
Governmental Affairs Committee to which this bill was assigned for
consideration. This certainly means that this bill is likely to be considered
in Committee. And with two influential Committee Democrats {Sen. McCaskill
(D,MO) and Sen. Heitkamp (D,ND)} as co-sponsors it would seem that there is probably
enough bipartisan support for this bill to be favorably reported by the
Committee.
Commentary
The differences between these two bills show a very
different approach to the matter while trying to accomplish almost the same
ends. The House bill amended 18 USC which immediately ensured that the
Judiciary Committee would have to be included in the deliberations. Johnson’s
bill amends just the Homeland Security Act which limits the consideration to
just the Homeland Security Committee even though the DOJ is specifically included
in the bill.
Another major difference is that the House bill specifically
listed the provisions of 18 USC that were excepted in providing DHS and DOJ
with authority to take counter-UAS activities. This bill exempts “any provision
of title 18, United States Code” {new §210G(a)}
from interfering with these activities. It seems to me that the Johnson
approach is overly broad and would inadvertently provide DHS and DOJ from
coverage for all sorts of otherwise illegal acts if they can claim they were in
support of covered anti-UAS activities.
Unlike the House bill, S 2836 puts off the issue of
protecting critical infrastructure from UAS mounted attacks until some unknown
future date after DHS completes their assessment and gets back to Congress. While
critical infrastructure owners (including State, local and tribal governments)
certainly should be concerned about the delay, I think that this is a generally
reasonable approach to a very complex, resource intensive, and difficult
problem.
DHS and DOJ are going to have a very difficult time adding
the additional manpower and equipment needed to provide the activities outlined
in this bill if they are going to provide continuous protection for the fixed
facilities outlined in the bill. I suspect that initially the two Departments
will concentrate on providing as needed protections when a specific threat is
identified ahead of time. This will still require the addition of counter-UAS
assets, but on a much more manageable scale.
The more limited approach taken by this bill (and the fact
that it will actually get considered in Committee) may make it easier to get
this bill passed, but I still think that there is going to be significant
opposition from parties that will be reluctant to authorize activities that
endanger aircraft.