House Set to Pass Anti-UAS Provisions?

Yesterday I ran across (and was pointed to by a couple of readers) an interesting NBC News article that was headlined: “New law would give federal government the right to shoot down private drones inside U.S.”. I thought that it was an oddly timed article on a couple of bills that I had previously reviewed here (HR 6401 or S 2836), but I went on and read it anyway. It turns out that I was right and woefully wrong.

HR 302 – FAA Reauthorization

The article noted that the bill was part of the FAA reauthorization bill that will be considered in the House tomorrow. I quickly did a search on my machine for FAA reauthorization bills and came up with HR 4, which was passed in the House in April and awaits Senate action. That bill did not contain any anti-UAS provisions and would not be reconsidered in the House until the Senate took action.

So next I looked at the House Majority Leader’s schedule page and scanned down to Wednesday, and sure enough there was a listing for HR 302, the FAA Reauthorization Act of 2018. Its not listed in my files, so I have not covered it; odd.

Then I looked on the Congress.gov web site and found HR 302, the Sports Medicine Licensure Clarity Act of 2017 (well that explains why I did not cover it). The listing for HR 302 on that site contains no mention of the FAA nor UAS; something is starting to smell here.

So I go back to the Majority Leader’s page and click on the link provided there to HR 302 and low and behold I find a monstrosity; a very much amended version of HR 302 that is indeed renamed the FAA Reauthorization Act of 2018 that includes so much more.

One last thing to check, I go to the House Transportation and Infrastructure Committee web site and see what I can find there. On that site I find a press release on HR 302 that explains that:

“House and Senate Committee leaders tonight announced that they have reached a bipartisan final agreement on legislation that provides long-term stability and critical reforms to the Federal Aviation Administration (FAA) and transforms federal disaster programs to better prepare communities for disaster.  The agreement also includes a reauthorizations and reforms of the Transportation Security Administration (TSA) and the National Transportation Safety Board (NTSB).”

The press release concludes by explaining:

“The announced agreement includes the FAA Reauthorization Act of 2018, the Disaster Recovery Reform Act of 2018, a three-year reauthorization of the Transportation Security Administration (TSA), and a four year reauthorization of the National Transportation Safety Board. Also included in H.R. 302 are sports medicine licensure legislation, the BUILD Act of 2018, a requirement for an assessment of the situation in Syria, the Preventing Emerging Threats Act of 2018, and supplemental appropriations for disaster relief.”

UAS Provisions

The new bill greatly expands the number of UAS provision from those found in HR 4. The version of HR 4 that was passed in the House included 19 sections in Subtitle B of the Safety title of the bill. HR 302 includes 43 sections. Some of the interesting provisions include:

§363 – Prohibition regarding weapons [on UAS, with exceptions];

§364 – US Counter-UAS system review of interagency coordination processes;

§365 – Cooperation related to certain counter-UAS technology;

§366 – Strategy for responding to public safety threats and enforcement utility of unmanned aircraft systems;

§370 – Sense of Congress on additional rulemaking authority;

§371 – Assessment of aircraft registration for small unmanned aircraft;

§372 – Enforcement;

§376 – Plan for full operational capability of unmanned aircraft systems traffic management; and

§382 – Prohibition [flying over wildfires].

Counter-UAS Provisions

Division H of the bill is the Preventing Emerging Threats Act of 2018. This is essentially a combination of HR 6401 and S 2836 that I have addressed separately. It does contain the more restrictive ‘notwithstanding’ clause in the new §210G(a) that was found in the House bill; limiting the laws that may be ignored in the process of identifying, tracking and bringing down a threatening UAS.

Commentary

The NBC News article that started off the search for this bill with a number of vague or lacking definitions in the bill. I would have preferred to see some of those concerns addressed in the bill, but it is probably more appropriate for those details to be hashed out in the regulatory process required in the new §210G(d).

My specific concerns about the language in the Counter-UAS section of the bill have been addressed in my earlier posts about the two bills that form the basis of the provisions in HR 302. It is clear to me, however, that some sort of authority needs to be provided to address specific threats posed by weaponized UAS. I am not sure that this language is the best way to deal with that, but it is limited enough to be a decent first step.

I do have, however, a major concern with the way this bill is being slid through the House. The FAA provisions have been greatly expanded from those found (and debated) in HR 4. Those provisions have been worked out behind closed doors and likely have many problems associated with them. Pushing them through the House with 40 minutes of debate that will be mainly limited to congratulating the Chair and Ranking Member of the Transportation and Infrastructure Committee on their bipartisan coordination in putting this bill together is an egregious misuse of the suspension of the rules process.

This revised bill is, however, an excellent example of the old-fashioned, horse-trading legislative process that Tip O’Neal would have been proud of. The crafters just kept adding divisions to the bill until they bought off every committee chair and ranking member that might have objected to the bill. We will see how well their efforts have paid off tomorrow when this bill comes up for consideration early in the session, though I expect that the vote will come later in the day. The leadership apparently thinks that this will pass and I suspect that they are correct.

There is a good chance, however, that even if this bill slides through the House it will die in the Senate. There it takes only a single senator to object to the political shenanigans involved in this Frankenstein’s monster of a creation to stop the bill from being considered in any abbreviated forum. And there are a number of bomb-throwers in the Senate who might take objection to this bill.

S 2836 Reported in Senate – UAS Protection

Earlier this week the Senate Homeland Security and Governmental Affairs Committee published their report on S 2836, the Preventing Emerging Threats Act of 2018. Additionally, the amended version of the bill was also published. The changes to the bill were made during a mark-up hearing conducted by the Committee on June 13^th, 2018.

Additional Protections

The changes made to the bill by the Committee did not make any major changes to the counter-UAS activities that DHS and DOJ are authorized to undertake. There were, however, three new constraints that would have to be considered before conducting counter-UAS activities. DHS and DOJ would be required to {new §210G(a)(2)}:

• Avoid infringement of the privacy and civil liberties of the people of the United States and the freedom of the press consistent with Federal law and the Constitution of the United States, including with regard to the testing of any equipment and the interception or acquisition of unmanned aircraft or systems;

• Limit the geographic reach and duration of the actions to only those areas and time frames that are reasonably necessary to address a reasonable threat; and

• Use reasonable care not to interfere with authorized or non-threatening manned or unmanned aircraft, communications, equipment, facilities or services

Moving Forward

It is unlikely that this bill could be brought to the floor of the Senate using any of the abbreviated consideration options found in the Senate rules. This means that there would almost certainly have to be significant floor debate and provisions for the consideration of amendments. With the constraints of time facing the body prior to the upcoming elections, it is unlikely that this bill will be considered until Congress returns from the battle royale in November. Even then, the chances of this bill making to the floor for a vote are probably low.

Commentary

Some of the ‘changes’ that I reported on in HR 6401 actually come from the revised language in this bill. Actually, the only significant change in the House bill is the language limiting the ‘notwithstanding’ clause in §210G(a)(1). While both bills would provide rather blanket authorization to avoid a wide variety of federal law regarding protections of aircraft and communications, the House language provides more targeted exemptions for specific activities rather than the blanket exemption from KK US criminal statutes found in the Senate bill. I really think that the Senate bill should adopt the House language for that clause.

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….

Senate Committee Marks-up Homeland Security Bills – 06-13-18

Yesterday the Senate Homeland Security and Governmental Affairs Committee held a business meeting where 27 bills were marked-up and adopted. Two bills of specific interest to readers of this blog were supposed to have been covered in this meeting but only S 2836, the Preventing Emerging Threats Act of 2018, was considered. S 2392, the Cyber SAFETY Act of 2018, was left for another day.

UAS Protections

S 2836 would provide authority for DHS and DOJ to take actions against unmanned aircraft systems under somewhat constrained circumstances. Yesterday the Committee adopted substitute language for the bill offered by Sen. Johnson (R,WI) and further amended that language via two amendments offered by Sen. Carper (D,DE). The Carper amendments were adopted by voice votes and S 2836, as amended was adopted by unanimous consent.

Unfortunately, the Committee does not publicly provide copies of amendments. We will have to wait until the Committee Report and revised language is published to see what changes have been made to the bill.

Moving Forward

Johnson’s prompt review of this bill indicates that he is sincerely interested in its passage. He has, in fact, also offered a version of this bill as a proposed amendment (SA 2314 – Pg 3237) to HR 5515. It will be interesting to see if he has (or is willing to expend) enough influence to get the bill considered by the full Senate. The bill would likely pass if the bipartisan support in Committee is any indication.

Committee Hearings – Week of 06-03-18

This week with both the House and Senate back from their extended Memorial Day Weekend spending bills will be the major topic on the Hill. There will also be two other hearings of potential interest to readers of this blog. The first will be a committee markup of a number of homeland security related bills. The second will be a hearing dealing with drone defense and S 2836.

Spending Bills

In addition to the Rules Committee hearings and floor consideration of HR 5895 that I mentioned in an earlier post, there will be some additional spending bills marked up this week:

• Tuesday – Senate – Subcommittee - Transportation, Housing and Urban Development (THUD), and Related Agencies;

• Tuesday – Senate – Subcommittee - Military Construction, Veterans Affairs, and Related Agencies;

• Wednesday – House – Committee - Interior, Environment, and Related Agencies;

• Thursday – House – Subcommittee – DOD;

• Thursday – Senate- Committee – THUD;

Markup Hearing

On Wednesday the House Homeland Security Committee will be holding a markup hearing to look at 10 bills. Of those, three may be of specific interest to readers of this blog:

• HR 5733, the DHS Industrial Control Systems Capabilities Enhancement Act of 2018;

• HR 5729, the Transportation Worker Identification Credential Accountability Act of 2018; and

• HRes 898 Directing the Secretary of Homeland Security to transmit certain documents to the House of Representatives relating to Department of Homeland Security policies and activities relating to homeland security information produced and disseminated regarding cybersecurity threats posed by the ZTE Corporation, headquartered in Shenzhen, China.

The resolution is effectively a subpoena to be issued by Congress. It was introduced by Rep. Thompson (D,MS). It is a straightforward listing of the types of documents that Thompson expects to be provided by DHS without any of the politically loaded ‘Congressional findings’ that frequently accompany such documents. Practically speaking, since Thompson is the Ranking Member of the Committee, he should be influential enough in his own right to have this resolution considered by the Committee, but I suspect that there will be at least some bipartisan support for the resolution.

Drone Defense

On Wednesday the Senate Homeland Security and Governmental Affairs Committee will hold an informational hearing on S 2836 and Countering Malicious Drones. The witness list includes:

• David J. Glawe, Department of Homeland Security;

• Hayley Chang, Department of Homeland Security;

• Scott Brunner, Federal Bureau of Investigation; and

• Angela H. Stubblefield, Federal Aviation Administration

This hearing will be focused on policy and the legal aspects of counter-drone operations. I suspect that the witnesses will be generally supportive of S 2836, but it will be informative looking at how down into the weeds they get into the legal aspects.

I am glad to see Chairman Johnson holding this type of hearing before moving to a markup of his bill. I think that it would also be helpful if the Committee held a hearing looking at the types of technology currently available to conduct counter-drone operations.

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.

Bills Introduced – 05-14-18

Yesterday with just the Senate in session (the House returns to Washington today) there were three bills introduced. One of those bills may be of specific interest to readers of this blog:

S 2836 A bill to assist the Department of Homeland Security in preventing emerging threats from unmanned aircraft and vehicles, and for other purposes. Sen. Johnson, Ron [R-WI]

It is interesting that the bill will address “unmanned aircraft and vehicles”; definitions will be a key point in this bill.