Review - S 3542 Introduced – Criminal Drone Misuse

Earlier this month, Sen Grassley (R,IA) introduced S 3542, the Done Act of 2022. The bill would revise 18 USC to expand the coverage of the criminal code for misuse of unmanned aircraft. No funding is provided in this bill.

Moving Forward

Grassley is the ranking member of the Senate Judiciary Committee to which this bill was assigned for consideration. This means that there should be sufficient influence to see this bill considered in Committee. Since the bill has two Democrats as cosponsors, the bill should receive some level of bipartisan support, but there should be some opposition from the UAV industry. I suspect that the bill would pass in Committee, but there could be significant changes made in the process.

This bill is not important enough to move to the floor of the Senate under regular order and there should be enough opposition to prevent it from being considered under the unanimous consent process. There is a chance that the bill could be included in some larger piece of legislation or offered as an amendment to another bill.

Commentary

The new Intrusion on Protected Spaces offense includes an interesting provision. It includes ‘rules, regulations, and orders’ of DHS as types of Federal Law that could be used to establish areas where UAVs could be prohibited. There is not currently any specific authority for DHS to establish such areas beyond the very constrained authorization in 6 USC 124n(k)(3)(C)(i) limited to federal facilities protected by DHS.

The similar authority granted to the FAA could be important, if/when the FAA ever gets around to writing its regulation allowing critical infrastructure facilities to petition to be covered by a UAS-specific flight restriction as required by §2209 of PL 114-190 (120 Stat 634). Those regulations were supposed to have been done by January 11^th, 2017.

For more details about the provisions of the bill, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/s-3542-introduced - subscription required.

DHS Sends UAV Best Practices Notice to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received a best practices notice from DHS for review. This was not listed in the latest Unified Agenda (notices typically are not) so there is no specific information about this proposed publication.

I would suspect that this is part of a DHS effort to establish internal controls about the appropriate use of unmanned aerial vehicles. It will be interesting to see how long it takes OIRA to approve the publication of this notice.

Committee Hearings – Week of 3-22-15

With both the House and Senate in Washington this week the budget remains a big topic, both in Committee and on the Floor of the House. In addition there will be hearings on cyber security, UAVs and railroad safety.

Budget Hearings

Of specific interest to readers of this blog will be hearings on the budgets for

∙ Coast Guard;

∙ FRA-PHMSA-FMCSA; and

∙ DHS

The House Rules Committee will also be holding a hearing this evening on the consideration of the Budget Resolution later this week by the Whole House.

It has been a while since there has actually been a budget resolution signed by the President. It will be interesting to see if the House can put together a bill that the Republican almost-controlled Senate can bring to a vote under regular order.

Cybersecurity

The Commerce, Manufacturing and Trade Subcommittee of the House Energy and Commerce Committee will hold a hearing on Tuesday and Wednesday on "H.R.__, Data Security and Breach Notification Act of 2015". A committee draft is available, but I have not yet had a chance to review it.

Unmanned Aerial Vehicles

The Aviation Operations, Safety, and Security Subcommittee of the Senate Commerce, Science and Transportation Committee will be holding a hearing on Tuesday on “Unmanned Aircraft Systems: Key Considerations Regarding Safety, Innovation, Economic Impact, and Privacy”. The witness list includes:

• Margaret Gilligan, Federal Aviation Administration;
• John B. Morris, Jr., National Telecommunications and Information Administration;
• Gerald Dillingham, Government Accountability Office;
• John Villasenor, The Brookings Institution;
• Paul Misener, Amazon, Inc.; and
• Jeff VanderWerff, the American Farm Bureau Federation

Looking at the witness list it would not seem that UAV operations over critical infrastructure will get much in the way of mention at this hearing.

Railroad Safety

The Senate Commerce Science and Transportation Committee will hold a business meeting on Wednesday that will include a markup of S.650, the Railroad Safety and Positive Train Control Extension Act.

I have just briefly reviewed this bill and, as expected, it would extend the current positive train control (PTC) installation deadline from December of this year until 2020 and provide authority to the Secretary of Transportation to further extend that deadline on a case-by-case basis until 2012.

Small Unmanned Aircraft Systems (sUAS)

On Saturday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that the FAA had submitted a notice of proposed rulemaking (NPRM) for Operation and Certification of Small Unmanned Aircraft Systems (sUAS). This rulemaking was mandated by the FAA Modernization and Reform Act of 2012 {§332(b) PL 112-95} with the final rule to be published by August 14^th, 2014 (Oops).

According to the Unified Agenda abstract for this rulemaking:

“This rulemaking would adopt specific rules for the operation of small unmanned aircraft systems (sUAS) in the national airspace system. These changes would address the classification of small unmanned aircraft, certification of their pilots and visual observers, registration, approval of operations, and operational limits in order to increase the safety and efficiency of the national airspace system.”

It is way too early to tell if this rulemaking will have any critical infrastructure security implications.

FAA Interprets Model Aircraft Rule

Yesterday the OMB’s Office of Information and Regulatory Affairs announced that it had received a draft of a notice from the Federal Avaiation Administration interpreting its rules on Model Aircraft.

The FAA set forth its current guidance on the operation of model aircraft back in 1981 in FAA Circular AC 91-57. It published a notice in the Federal Register (72 FR 6689-6690) updating that guidance with respect to commercial operations of unmanned aircraft systems.

Notices such as this are not listed in the Unified Agenda so we have no publicly available information about what this notice might address. I would suppose, however, that with the rise of ever more sophisticated small, unmanned aerial vehicles (UAV) that there will be additional restrictions placed upon their operations. This may include discussion about the operation of such vehicles over and around critical infrastructure facilities.

There is no telling how long this will take to clear OIRA since we have no idea how politically sensitive the notice will be.

Aerial Surveillance

There is an interesting article over on HomelandSecurityNewsWire.com about security integrators (contractors that bring all sorts of different security technologies together for a coherent security program) thinking about using UAVs (Unmanned Aerial Vehicles) as part of the surveillance program for critical infrastructure facilities. The idea being that when a sensor detected possible intrusions, security personnel would launch a UAV to investigate and potentially track intruders.

For large facilities this could reduce the number of cameras needed to provide video surveillance coverage of the facility, eliminate dead spots and provide near continuous coverage of intruders as they move through the facility. There is no mention of the price of these UAVs in the article, but they certainly won’t be cheap. There is an additional cost for the training needed for UAV operators. This is not something that you would expect the minimum-wage gate-guard to be doing.

Aerial video surveillance is not limited to use by security personnel. Readers might remember my posts from this spring about the use of an airship by Greenpeace to ‘monitor’ chemical facilities. While that too must be a fairly expensive craft to operate there are cheaper alternatives if one is willing to sacrifice some flexibility. There are a number of hobbyist radio-controlled aircraft that could be equipped with a variety of digital cameras.

While these vehicles would probably not be expected to provide real-time surveillance (though advanced enthusiasts could certainly equip their planes with this capability), they could provide detailed information about the layout of a facility. The cost of this surveillance is not all that high. No longer are these planes built from scratch by skilled hobbyists; kit planes and ready-built aircraft are generally available. As we continue to see increases in the number and backgrounds of home-grown terrorists, it is likely that there will be some with the necessary skills and knowledge to operate such tools.

There is little that a facility could do to stop this type of surveillance. Predator drones (much larger than the hobby aircraft I’m talking about) have been difficult to shoot down and most facility managers would frown on placing anti-aircraft guns on their facility. Jamming flight control frequencies is technically possible, but control frequency detection is difficult and radio jamming is frowned upon by the FCC. Tracking the aircraft to its landing site is about the only option and that can be very difficult.

The only real response that a facility would have would be to report the apparent surveillance and increase security measures for a potential attack. Of course, a facility that failed to detect the aircraft, or failed to consider its potential security implications, would not take any additional precautions. That might make them more vulnerable.