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In the U.S., a proposed bill would give the Department of Homeland Security and the Department of Justice broad capabilities to take down and disable drones seen to pose a threat – regardless of any existing laws to the contrary.

Yesterday, the Commercial Drone Alliance released advanced commentary before the U.S. Senate Committee on Homeland Security and Governmental Affairs hearing concerning S. 2836, the Preventing Emerging Threats Act of 2018.  That commentary asked that lawmakers view the legislation narrowly, and ensure that commercial operations were not affected by the bill.  The ACLU opposes the legislation, and sent a letter to the Committee expressing their opposition.  “There are practical questions about whether additional authority is needed,” said the letter.  Today’s hearing, however, did not do much to reassure commercial operators or those concerned with privacy- focusing instead on the “imminent threat” of a terrorist attack by a small and readily available drone.

What is s. 2836, the Preventing Emerging Threats Act?

S.2836 would give the Department of Justice and the Department of Homeland Security the authority to disable, down, and seize any drone that met their criteria for threat.  Currently, the agencies have very limited authority to protect only their own sites: this bill would allow them to use this authority at any type of event requiring security, like major sporting or a political events.

In addition, the bill allows for research, testing, training and evaluation for any equipment related to the authority to disable or down a drone.

These authorities would be granted  “Notwithstanding section 46502 of title 49, United States Code, or any provision of title 18, United States Code,” which means that the authority would trump any current law in the entire criminal code – such as the law that currently prohibits interference with aircraft.  This exception is an item that hearing witness Hayley Chang, Deputy General Counsel for the U.S. Department of Homeland Security, said was critical to the bill’s effectiveness.  While some critics have asked why a broad exemption is necessary instead of individual exemptions to specific laws such as the one prohibiting interference with aircraft, Chang says that the exemption “is the heart of the issue – without that clarity officers will find their hands tied.”  Protesting that “tweaks” to the bill would not provide officers on the ground with the clear authority needed, Chang thanked the committee for “taking this straightforward approach,” and pointed out that the rapidly changing industry and technology environment made it necessary. “Things that were not illegal yesterday will be illegal tomorrow” without a broad exemption, she said.

While the bill names other provisions for cooperation and reporting, it has a narrow scope.  That narrow scope is something that Committee Co-Chair and the bill’s sponsor, Senator Ron Johnson (R-WI), emphasized throughout the hearing.  “This is a ‘table steaks’ piece of legislation,” the Senator commented. At another point in the hearing, Johnson said: “I can’t overstate the fact that this is just a minimal first step.”

What does S.2836 change?

“Right now, DoD has very limited authority – to only protect assets of theirs,” said Chang. “This would add coverage of other events based on risk-based assessment – things like the Super Bowl.”

Additionally, the bill would add authority to research counter-drone measures (particularly electronic methods) and test them in real-world scenarios and environments: something the Departments are currently unable to do based on laws concerning wire-tapping and interference with aircraft.  “We need this bill because right now our research and development is illegal,” said Chang.

Angela Stubblefield, Deputy Associate Administrator, Security and Hazardous Materials Safety at the FAA, commented that “There are a lot of counter-UAS systems available… however they have not been tested in a civil environment.” Because of the current restrictions on research and testing, hearing witnesses indicated that their departments are not able currently to understand what effect counter-UAS systems might have on surrounding manned aircraft or communications systems if deployed.

Why is the bill necessary?

The legislation stems from fears that terrorist organizations and multinational criminal organizations will increase their use of readily available commercial drones, creating a significant homeland threat.  The hearing began with Sen. Johnson trying to share a YouTube video posted by the Islamic State (ISIS), showing a commercial drone dropping a grenade on a military target.  (The video was shown later in the hearing.)

“ISIS is out on YouTube bragging about their capabilities,” said Sen. Johnson. “[The video] looks like something out of the U.S. Defense Department – it’s from ISIS, part of their propaganda…It’s frightening.”

“We have no authority to deal with those drones,” Johnson said.

Committee co-chair Sen. Claire McCaskill (D-MO) added “Drones can be used for good and for bad,” commenting that “Unfortunately, drones have the capability to cause great harm… the threat is imminent.”

“Drones are easy to implement and tough to disrupt and monitor,” said McCaskill.

What could this bill – and its effects – mean for the drone industry?

While industry stakeholders are obviously concerned about the possibility of having a legally operated commercial drone disrupted, either accidentally or through an overreach of authority, there were two other points made clear during the hearing.  Remote ID and tracking is on the way – and Section 336 is under scrutiny.

FAA representative Angela Stubblefield was clear that Remote ID and Tracking was a first and critically important step towards security.”Being able to associate a drone in flight with an operator on the ground is crucial,” said Stubblefield, commenting that “anonymous operation” is inconsistent with any system of security.

Stubblefield made it clear that the agency supports this legislation – but referenced Section 336, the code that protects recreational drones from new FAA legislation, several times throughout the hearing, asking Senators to address the issue. “A basic set of requirements must be applied to all UAS operators,” said Stubblefield, with emphasis. “This is essential.”

“…We don’t have the authority to require remote ID [for model aircraft]…That’s a space where we need more assistance,” she said.

The Commercial Counter-UAV Market

One group that may benefit from the bill is the commercial counter-UAV market.  ASD News estimated that in 2017 the market was worth over $830 million with rapid growth ahead; new legislation and focus on counter-UAV efforts could drive that market even higher than predicted.  Sen. McCaskill took the Hon. David Glawe, Under Secretary, Office of Intelligence and Analysis at the U.S. Department of Homeland Security, to task for not utilizing “off the shelf” products.

McCaskill commented that  “sometimes off the shelf solutions are a better deal for taxpayers,” and emphasized that she did not support government development of counter-UAS technology that could be out of date by the time it was completed.  There were plenty of commercial technologies already available, she pointed out.  “I really need you to get back to me on why we aren’t buying this off the shelf,” she said. “Why aren’t we availing ourselves of this technology?”

What happens next?

Hearing comments will remain open for another period of time, but Senator Johnson urged the committee to attach this bill to the National Defense Act, and push it through.  “Take the opportunity to get this attached to NDA and get this passed,” he said. “…This threat is real.”

Hon. David Glawe agreed: “We have to move with a sense of urgency on this.”

Miriam McNabb is the Editor-in-Chief of DRONELIFE and CEO of JobForDrones, a professional drone services marketplace, and a fascinated observer of the emerging drone industry and the regulatory environment for drones. Miriam has a degree from the University of Chicago and over 20 years of experience in high tech sales and marketing for new technologies.
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