The US government has warned against the use of anti-drone technology by private companies and even American states, saying it could break current wiretap and hacking laws.
In a joint advisory put out this week by the Department of Justice, the Federal Aviation Administration (FAA), the Federal Communications Commission (FCC) and Homeland Security, the agencies “strongly recommend” that anyone thinking of deploying such technology should “seek the advice of counsel experienced with both federal and state criminal, surveillance, and communications laws.”
The explosion in the use of drones, thanks to technological advances and relatively low prices, has had significant knock-on impacts (such as the closing of various airports around the world) and many entities are looking at what they can do to mitigate their impact.
The advisory [PDF] identifies state and local governments as well as the “owners and operators of critical infrastructure, stadiums, outdoor entertainment venues, airports, and other key sites” as organizations most likely to look at technology designed to bring down or disable drones.
But, due to the way that technology works, it could fall foul of laws designed to protect aircraft and communications. The four government agencies note that they have been given special dispensation in the law to use anti-drone tech – and awarded themselves the right to shoot down any drone any time they like – but everyone else has to be careful.
Pick up lines
The advisory breaks the issue up into two main categories: picking up and interfering with signals from drones; and using physical means to bring down a drone. Both may break federal laws for different reasons.
For example, while it is legal to pick up transmission to and from a drone in order to track or monitor it – especially since it is an “aeronautical communications system” which is exempt under the Wiretap Act – it is likely illegal to record, decode, capture or store those transmissions.
Legality will also vary by the method used to pick up the transmissions. Using radar, electro-optical (EO), infrared (IR) or acoustic methods is probably fine, but radio frequency (RF) is a different matter given the tight controls there are over use of bandwidth to prevent interference.
It also depends what kind of transmissions are being picked up: if it is just the type and model of the drone, or its direction, that is fine, but if the drone is connected to a data network and transmitting information, that is a whole other legal matter and would likely break the Wiretap Act.
Then there’s the fact that anti-drone technology will often want to be able to disrupt communications in order, for example, to prevent a drone from flying over a specific area. This is a much riskier area of law and starts straying into anti-hacking statutes.
The advisory distinguishes between “non-kinetic and kinetic” ways to stopping a drone which could be more simply represented as hacking/jamming a drone and physically taking it out with a net or projectile.
There are various ways to disable a drone which often vary depending on the drone itself. You could jam its communications, whether RF, Wi-Fi or GPS, by firing a similar, stronger signal at it. Or spoof those signals. You could try to hack the drone itself and take over communications to steer it yourself (Hollywood’s favored approach), or you could fire an energy weapon at it, which basically fries its electronics. All of them are legally risky.
When companies started buying jammers for their offices in order to get people to stop using their phones and laptops in meeting rooms (either to get work done or prevent surreptitious recording), the powers-that-be quickly made it plain that they were not legal. Non-federal entities are not allowed to create jammers without specific FCC approval (47 USC 302a) and devices are not allowed to mess with anything that does have an FCC license (47 USC 333.)
Now imagine the room jammer but many, many times more powerful in order to impact something high up in the sky. It’s not legal, the agencies warn.
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The advisory notes that there are long-standing laws against jamming and interfering: the Computer Fraud and Abuse Act (1986) for one, but it also a crime to interfere with the operation of a satellite (18 USC § 1367) and to interfere with communication lines, stations or systems (18 USC § 1362).
Likewise, physically attacking a drone crosses all kinds of legal boundaries because there are quite a few legal protections over anything flying through air. The advisory lists four main ones: Use of airspace (49 USC 40103), Airport Operating Certificates (49 USC 44706), Structures Interfering with Air Commerce (49 USC 44718) and Project Grant Application Approval Conditioned on Assurances About Airport Operations (49 USC 47107). That last one covers a requirement for airports to operate safely.
In short, it is a legal minefield and the more effective any anti-drone technology, the more illegal it is likely to be.
And the solution?
So what do the four government agencies that are allowed to use anti-drone technology think should be done about the situation?
They don’t say. In fact the advisory goes out of its way to avoid the question, even noting repeatedly that is “for information purposes only” and “not binding and lacks the force and effect of law.”
But it basically tells everyone – from private companies to state governments – to go get their own legal opinion on anything they have bought or are thinking about buying to deal with drones. It also expressly notes that they “should not rely solely on vendors’ representations’ of legality or functionality.”
It’s not hard to see how many of the legal concerns and laws cited in the advisory document could be challenged by a company or state government that is seeking to protect its property, secrets or the public at large. But at some point, it is going to be a big legal battle and most people would probably prefer to avoid that.
The best solution, of course, would be for Congress to take up the issue and spend a few years crafting new legislation that effectively deals with the modern reality of drones, balancing privacy, security and technology to draw clear lines that work best for all. But then, you know, Congress doesn’t function anymore, so vague warnings are all we’re likely to get for a while. ®