HR 6401 Introduced – Counter UAV

Earlier this month Rep. McCaul (R,TX) introduced HR 6401, the Preventing Emerging Threats Act of 2018. This bill is a refinement of S 2836, a bill of the same title introduced by Sen. Johnson (R,WI). Both bills 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)}.

Most of the changes made by this bill are simply the addition of clarifying language. For example, in §210G(a), this bill substitutes “sections 32, 1030, 1367 and chapters 119 and 206 of title 18, United States Code” for the “any provision of title 18, United States Code” used in the Senate bill.

Other changes actually narrow (albeit only slightly) the scope of the authority of DHS and DOJ to maintain records of information obtained while taking actions against UAS/UAVs. For example, in paragraph (e)(3) this bill replaces the broad “support one or more functions” language with the slightly more restrictive “support 1 or more safety or security functions” language in explicating when the departments can hold information obtained past 180 days.

There is also a minor narrowing of the definition of ‘covered facility or asset’ in paragraph (k)(3) with the frequent addition of the phrase “considered to be high-risk or assessed to be a target for unlawful unmanned aircraft activity” in the descriptions of the different categories of covered facilities, assets or activities.

Moving Forward

McCaul is the Chair of the House Homeland Security Committee and thus will call up this bill for consideration when ever he pleases. Interestingly, he did not include this bill in the recent markup hearing where other bills introduced on the same day were addressed. I suspect that this was due to concerns of Committee Democrats about some of the provisions of the bill. I expect that when this bill is considered, it will be with substitute language.

Commentary

Like S 2836, this bill does not address the problem of preventing potential UAS attacks on privately owned critical infrastructure. The reasons for that are two-fold. First, these bills are attempting to closely hold the authority to attack UAS, limiting it to actions undertaken by DHS and DOJ. There is going to be a strong reluctance on many in Congress to providing any authority to take down any sort of aircraft operating in the national airspace. Strictly limiting that authority is going to be a prerequisite to any congressional action.

The second problem is that too many people (congresscritters specifically included) have a hard time accepting that there is a realistic threat of a consequential attack by UAS. While everyone is well aware of the military use of attack drones, most people think of UAS in the national airspace as the quadcopters and small helicopters that are sold at the local mall. The use of those devices as a terrorist weapon of significance is generally discounted in the minds of most people.

I expect that for any counter UAV bill to make it to the President’s desk, the bill will have to restrict the definition of a UAV/UAS to the larger types of commercial aircraft that are able to carry a more substantial payload. The smaller quadcopters, camera platforms, and flying toys will just not be taken seriously as a substantial threat. Until, of course, one is actually used in a successful, high-profile attack. Then all bets are off….