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.

HR 5366 Introduced – UAS Interdiction

Last month Rep. Hartzler (R,MO) introduced HR 5366, the Safeguarding America’s Skies Act of 2018. The bill would authorize DHS and DOJ personnel to take actions to interdict unmanned aerial systems around selected critical infrastructure facilities.

Authorized Actions

The bill would add a new section to 18 USC would give the Secretary of Homeland Security and the Attorney General the authority to “authorize officers, employees, and contractors of the department assigned with duties that include safety, security, or protection of personnel, facilities, or assets of the department” to take actions to mitigate a threat “that an unauthorized UAV poses to the safety or security of a covered facility or asset” {new §28(a)}. The authorized actions include {new §28(b)}:

• Detect, identify, monitor, and track, without prior consent, a UAV, to evaluate whether the UAV poses a reasonable threat to the safety or security of a covered facility or asset

• Warn the operator of the UAV;

• Redirect, alter control, disable, disrupt, seize, or confiscate, without prior consent, a UAV that poses a reasonable threat, including by intercepting, substituting, or disrupting wire, oral, electronic, or radio communications or signals transmitted to or by UAV;

• Use reasonable force to disable, disrupt, damage, or destroy a small unmanned aircraft, unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that poses a reasonable threat to the safety or security of a covered facility or asset.

• Conduct research, testing, training on, or evaluation of any equipment, including any electronic equipment, to determine its capability and utility to enable (sic).

The definition of the term ‘covered facility or asset’ describes facilities designated by the Secretary or Attorney General that could include {new §28(h)(2)(C)}:

• Buildings and grounds leased, owned, or operated by or for the Federal Government, including Federal Facility protection operations;

• Authorized protective operations, including but not limited to the protection of Federal jurists, court officers, witnesses, and other persons;

• Penal, detention, correctional, and judicial operations;

• National Security Special Events, Special Event Assessment Ratings Events, or other mass gatherings or events that are reasonably assessed by the Department of Justice to be a potential target for terrorism or other criminal activity;

• Active Federal law enforcement investigations;

• Operations that counter terrorism, narcotics, and transnational criminal organizations;

• Securing authorized vessels, whether moored or underway;

• Protection operations pursuant to section 3056;

• Critical infrastructure;

• Emergency Response Operations;

• National Disaster Areas, Natural, or Hazardous Disaster Areas if it is determined by the • Secretary of Homeland Security that unauthorized access to the airspace would restrict recovery efforts;

• Other areas identified by the President.

The other key term ‘critical infrastructure’ is defined {new §28(h)(6)} by reference to 18 USC 2339D that uses the broad definition of “systems and assets vital to national defense, national security, economic security, public health or safety including both regional and national infrastructure” instead of one of the more restrictive definitions {see for example 42 USC 5195c(e)} that uses the phrase “…so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact…”.

The bill would provide certain restrictions on the actions authorized to be taken. In addition to specific privacy restrictions outlined in the new §28(3) the bill would also require DHS and DOJ to {new §28(a)}:

• Avoid any infringement of the privacy and civil rights of the people of the United States and the freedom of the press consistent with the First and Fourth Amendments, including with regard the testing of any equipment and the interception or acquisition of communications;

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

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

Information Disclosure

The new §28(d) provides that:

“Information pertaining to the technology, procedures, and protocols used to carry out this section, including any regulations or guidance issued to carry out this section, shall be exempt from disclosure under section 552(b)(3) of title 5 and exempt from disclosure under State and local law requiring the disclosure of information.”

DOT Action Required

The new §28(b)(5) would require DOT within one year to “issue a final rule requiring remote identification and tracking of UAVs, including UAVs for recreational use, to ensure that cooperative aircraft are identified”.

Other 18 USC Amendments

Section 2(c) of the bill amends various other portions of 18 USC to exempt actions taken under the proposed §28. These include:

• 18 USC 32 - Destruction of aircraft or aircraft facilities;

• 18 USC 1030 - Fraud and related activity in connection with computers;

• 18 USC 1632 - Communication lines, stations or systems;

• 18 USC 1367 - Interference with the operation of a satellite;

• 18 USC Chapter 119 - Wire and Electronic Communications Interception and Interception of Oral Communications; and

• 18 USC Chapter 206 - Pen Registers and Trap and Trace Devices

Moving Forward

Neither Hartzler nor her two co-sponsors {Scott (GA) and Hanabusa (HI)} are members of any of the three committees (Judiciary, Homeland Security, and Transportation and Infrastructure) to which this bill was assigned for consideration. This means that the bill is unlikely to receive consideration in any of the committees. I suspect that even if it were considered in committee it would not receive majority support; it is too radical a change in the way that aircraft are protected in law to receive the necessary support.

Commentary

For about a year now I have been advocating for changes to US statutes to specifically allow for interdiction of drones over high-risk chemical facilities (and other critical infrastructure). This bill provides a good look at just how complicated that type legislation could be. Section 2(c) of the bill provides a pretty good insight into what laws might have to be revised to allow for the interdiction of UAS.

BTW: You can see my effort to craft a more limited drone interdiction authorization here.

The bill takes an odd turn when it only allows agents of the United States (employees and contractors of DHS and DOJ) to interdict UAS. I see this as a method to keep tight control of the technology and weapons involved. Unfortunately, this would probably result in as many problems as it would solve. Neither DHS nor DOJ has enough manpower to assign UAS control teams to critical public buildings on a long-term basis, much less privately owned critical infrastructure. This would mean that both agencies would have to have UAS response teams that could be tasked to support (on a short-term response basis) individual sites that are having (or reasonably expect to have UAS overflight problems that would potentially affect the security of the site or the safety of personnel on the site.

Another odd provision is found in the information disclosure paragraph. While I certainly understand the crafters concerns about the protection of information obtained during the unintended interception of communications with UAS that really should not be intercepted under the rules envisioned by this bill. Unfortunately, the crafters either poorly worded the paragraph or they specifically intended DHS and DOJ to write the rules required by this bill without sharing those rules with the public. I really hope it is an English usage problem and not an attempt at specifying unnecessary government secrecy.  

Bills Introduced – 03-21-18

Yesterday with the House and Senate both in session, there were 34 bills introduced. Of those two (see note below) may be of specific interest to readers of this blog:

HR 5366 To amend title 18, United States Code, to provide for certain authorized actions regarding interdiction of unmanned aircraft, and for other purposes. Rep. Hartzler, Vicky [R-MO-4]

HR 1625 TARGET Act [Consolidated Appropriations Act, 2018] House Amendment to Senate Amendment to H.R. 1625 (Rules Committee Print 115-66—Showing the text of the Consolidated Appropriations Act, 2018)

NOTE: Okay, HR 1625 was not actually introduced yesterday in the formal sense of the word. The House Rules Committee published the text that will be considered as substitute language for the Senate amendment to HR 1625. The important thing is that this will now be the omnibus spending bill for 2018. More on this bill later.