S 2836 Introduced – UAS Interdiction

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.