HR 4432 Introduced – Drone Threat Assessment

Last month Rep. Richmond, (D,LA) introduced HR 4432, the Protecting Critical Infrastructure Against Drones and Emerging Threats Act. The bill would require DHS to “develop and disseminate a terrorism threat assessment regarding unmanned aircraft systems and other emerging terrorism threats associated with such new technologies” {§2(a)(1)}.

Threat Assessment

Section 2 of the bill would require the Department’s Under Secretary for Intelligence and Analysis to work with other agencies within the government and with the private sector to collect the information required to prepare the threat assessment. Additionally, the Department would be required to stand up a “secure communications and information technology infrastructure” {2(a)(3)} (presumably on-line) to collect information from the private sector on “emerging terrorism threats, such as the terrorism threat posed by unmanned aircraft systems”.

The Department would be required to report to Congress within one year on their threat assessment.

Markup

This bill was marked up by the House Homeland Security Committee last month. There was one amendment offered and adopted. The bill was ordered to be reported favorably by a unanimous consent.

The amendment (2^nd page of document) added a requirement that the report to congress should include a “classified plan to mitigate such threat as appropriate”.

Moving Forward

Since the markup hearing was held before a copy of the bill was publicly available from either the GPO or the Committee website, it seems clear that there is a significant intent to move this bill forward. The unanimous consent adoption of the bill in Committee makes it clear that the bill will move to the full House under the House suspension of the rules process; limited debate, no floor amendments and a supermajority required for passage. There is a chance that this bill will come up for consideration before the end of the month.

Commentary

With the reported use of drones in the oilfield attack in Saudi Arabia, the threat from unmanned aircraft systems became more real to many Americans. While those were almost certainly military drones (similar if less sophisticated than the ones the CIA has been using in its War on Terror) and not the ‘quad-copters’ that most people think of as UAS, it is quickly becoming clear that UAS of all sorts may be, at some level, a threat to the homeland. This formal assessment of that threat is clearly long-overdue.

Having said that, this bill has some significant problems. First off, there is no funding for the assessment (not big problem as the people collecting and analyzing the information are already in place) or for the ‘secure communications and information technology infrastructure’ that will support the ongoing collection effort. The programming and support for that infrastructure will cost money and it will have to come from someplace. Without authorizing funding for this effort, congress will ensure that the money comes from other intelligence collection/analysis efforts within DHS. Something is going to lose, and it will not come from the Wall.

Second, the added classified report bothers me. Sure, some details of an anti-drone effort will have to be classified. There does need to be, however, a significant public discussion about how such a program would operate, how the legal hurdles would be addressed, and how the private sector would be involved in the process. That cannot happen if the DHS plan is classified. The plan should have been unclassified with a classified annex for specific operational details.

Next, §2(c) of the bill exempts DHS from following the Paperwork Reduction Act (44 USC 3501 et al). This means that DHS will not have to complete an information collection request (ICR) with OMB’s Office of Information and Regulatory Affairs for the information collected via and analyzed by the bills “information technology infrastructure”. While the information being collected by the system may be sensitive (though the bill does not so designate the information or provide for any protection mechanism for the information) the estimates of the number of the responding agencies, the suspected number of responses and the response burden are not sensitive. This exemption should not be in the bill.

Finally, it looks like someone may be trying to slip a ringer in. There are too many places in the bill where it refers to ‘emerging terrorism threats, such as the terrorism threat posed by unmanned aircraft systems’. I understand, that there are constantly emerging threat vectors and DHS needs identify the emerging threats and keep congress advised about their existence and DHS efforts to counter them. That general requirement should be part and parcel of the intelligence and analysis mandate. This bill is purportedly a congressional direction to look at a specific threat, unmanned aerial systems. Lumping in undefined ‘emerging terrorism threats’ gives DHS too much discretion about the information it collects. This is especially true given the ICR exception provided by this bill.

But who can object to DHS conducting a terrorism threat assessment of drones? That is the ultimate motherhood and apple pie objective. Maybe I should not be questioning it.