Review - HR 8949 Introduced – C-UAS Authority Extension

Last month, Rep Nadler (D,NY) introduced HR 8949, the Counter-UAS Authority Extension and Transparency Enhancement Act of 2022. The bill would extend the limited authority of DHS and DOJ to undertake counter-drone operations through October 1^st, 2023; that authority expired earlier this month. The bill would make other changes to the C-UAS authority provided under 6 USC 124n

Moving Forward

Nadler is a member of the House Judiciary Committee; two of his cosponsors {Rep Thompson (D,MS) and Rep Katko (R,NY)} are members of the House Homeland Security Committee; and three of his cosponsors {Rep DeFasio (D,OR), Rep Graves (R,MO), and Katko} are members of the House Transportation and Infrastructure Committee, the three committees to which this bill was assigned for consideration. This means that there should certainly be sufficient influence to see the bill considered in the committees.

While this is a complicated bill, I do not see anything that would cause any organized opposition in committee. There is, however, one minor provision that could cause problems in moving this bill to the floor of the House, a change in the definition of ‘appropriate congressional committee’ in §124n(k). Section 2(9)(A) of the bill would remove “the Committee on Energy and Commerce” from that definition. This would adversely affect the prerogatives of the Chair of that Committee and could cause problems for the Leadership. If the fix is already in, then it will not be a problem.

Commentary

I am a little bit concerned about the changes made to the ‘notwithstanding’ clause. It seems to me that removing those protective references would leave DHS and DOJ open to lawsuits by any drone operator whose UAS was interfered with by either agency using signal intercept techniques. On the other hand, I cannot believe that the legal staffs associated with the three Committees would have signed off on this bill if it would put the government at legal jeopardy.

A warrant to intercept (and interfere) with those communications would get the agencies around those legal difficulties but getting such a warrant would require some level of advanced knowledge of the UAS attack. That will likely only be possible in a limited number of cases.

 

For more details about the provisions of the bill, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-8949-introduced - subscription required.