Review - S 4801 Introduced – SHIELD Act

Last month, Sen Lee (R,UT) introduced S 4801, the Stopping Harmful Incidents to Enforce Lawful Drone Use (SHIELD) Act. The bill would provide airport authorities conduct counter-drone activities at commercial airports and State. It would also allow State and local law enforcement personnel broad authority to conduct counter drone operations with little federal restrictions.

Moving Forward

Lee is a member of the Senate Commerce, Science and Technology Committee to which this bill is assigned for consideration. This means that there may be enough influence to see the bill considered in Committee. I suspect that the relatively unrestricted authorization for State and local law enforcement officials to conduct counter-drone operations will draw at least some organized opposition, whether it would be enough to stall consideration of the bill remains to be seen.

This bill should be too controversial for it to be considered by the full Senate as a stand-alone bill, there is a remote chance that the bill could be offered as an amendment to the NDAA being considered this week, but I doubt that Lee would be able to garner support of the Democratic leadership for the bill to be considered. If Lee is firmly enough behind this bill, he could be expected to use a vote on the bill as an amendment as a bargaining chip to get his support for a cloture vote or unanimous consent agreement. That would only occur if this was one of his most important (to him) pieces of proposed legislation and I do not think that it is.

Commentary

Counter-UAS operations would seem to violate a number of current federal laws, including:

• 49 USC 46502 (air piracy),

• 18 USC 32 (destruction of aircraft),

• 18 USC 1030 (computer fraud),

• 18 USC 1367 (operation of a satellite),

• 18 USC Chapter 119 (communications interception), and

• 18 USC Chapter 206 (trap and trace).

Instead of specifical exempting counter-drone operations from concerns about those statute provisions, this bill uses two broad phrases: ‘Notwithstanding any other provision of law’, and ‘in a manner consistent with the Fourth Amendment to the Constitution of the United States’. The first is so broad as to remove any legal restrictions against counter-drone operations, technically even allowing operations against military drones transiting non-military airspace. To counter that, the second requirement would seem to require the use of a search warrant to be allowed to seize a drone, but it is not clear that the language is specific enough to require a search warrant to be provided before any counter-UAS operations are undertaken, short of seizing the drone once it is forced to land.

Furthermore, I think that the provisions of this bill allowing State and local law enforcement agencies to take actions against aircraft anywhere in their jurisdictions is too broad an expansion of control over the airspace of the United States. At the very least it should be restricted to critical infrastructure facilities and other areas where the FAA has implemented air space restrictions against drone operations. Operations anywhere else would interfere with the FAA management of the national air space.

 

For more details about the provisions of this bill, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/s-4801-introduced-shield-act - subscription required.