Two years ago, the Federal Aviation Administration (FAA), at the behest of Congress, created rules for the commercial use of drones. While these rules opened the door for initial adoption, they do not allow drones to deliver packages or operate outside of line of sight, at night, or over people without receiving a special exemption. Moreover, there have been a number of security incidents involving drones over the past year, including a collision between a civilian drone and an Army helicopter, showing that security agencies require tools to minimize safety risks for the public.
The problem is that law enforcement agencies have limited capabilities to detect, and if necessary respond to, errant or malicious drones. Addressing this challenge—both by granting additional authority to law enforcement agencies and by pursuing technological advancements—would make the United States more competitive in drone technology and accelerate the integration of unmanned aircraft systems (UAS) into the National Airspace System.
ITIF hosted an expert panel discussion on the merits of granting law enforcement agencies this additional authority (see legislative proposal and fact sheet), how law enforcement agencies should respond to errant and malicious drones, and how to bolster U.S. competitiveness in UAS.
The rules that the FAA created two years ago allowed the commercial use of drones on low-risk operations. While the rules helped expand the adoption of commercial drones, they placed several restrictions on many types of operations, such as package delivery as well as on flying drones over people, at night, and out of sight of the operator. More flexible rules for commercial drone operations have been held up, in part, due to concerns that governments do not have adequate legal power to stop errant and malicious drones, and therefore promote national security and safety. Indeed, a crash in 2017 between a civilian drone and army helicopter demonstrated the salience of this issue.
To address these concerns, the White House released a draft proposal in 2017 that would allow the government to track, take control of, and destroy drones flying in U.S. airspace. Since that time, the White House has iterated on its proposal and sought support in Congress.
Opening the event, Daniel Castro, vice president of ITIF and discussion moderator, highlighted the current policy struggle of developing counter-UAS. There are legal doubts about the authority of law enforcement to detect and mitigate errant or malicious drone threats. As Castro noted, the result is that the market for developing counter-UAS is suffering from a chicken and egg problem. “We cannot develop the market for counter-UAS technology if we don’t have buyers and there won’t be buyers if there is not the authority.” The White House proposal, Castro noted, offered a solution to this problem.
According to Brendan Groves, counsel to the deputy attorney general and the leader of the U.S. Department of Justice’s efforts related to unmanned aircraft, the proposal provides authority to the U.S. Department of Homeland Security (DHS) and DOJ to protect critical facilities and assets from threats. Groves stated that the two main threats are terrorist and criminal, with errant uses being of less concern. Despite the belief that the proposal would create new opportunities for the commercial expansion of drone use, Lisa Ellman, partner and co-chair of Global Unmanned Aircraft Systems Practice at Hogan Lovells and co-founder of the Commercial Drone Alliance, outlined several industry concerns. Specifically, she noted that the proposal does not explicitly define what a threat is and lacks a reasonableness requirement for law enforcement authorities to mitigate a threat. In response, Groves highlighted that the proposal requires the attorney general, secretary of homeland security, and secretary of transportation to create a definition of threat. In addition, Groves argued that the bill had a higher standard than reasonableness, because the action has to be “necessary to mitigate a threat.”
Beyond specific industry concerns, the panel discussed three major issues surrounding the counter-UAS proposal.
First, the proposal lacks a requirement for remote identification that a law enforcement official would potentially be able to use to identify a drone and its operator. Panelists were in agreement that such technology could benefit both commercial entities and the government. Anh Duong, the program executive officer of unmanned aerial systems at DHS, pointed out that the first goal of counter-UAS measures is to detect and identify who owns the drone. To do this, remote identification is needed to decipher which drones are malicious and which are not. As Diana Marina Cooper, senior vice president of policy and strategy at PrecisionHawk noted, “We see counter-UAS measures as going hand in hand with remote-ID and tracking.” Moreover, according to Ellman, industry wants the government to know who is flying so commercial drones are not inadvertently shot down, which is particularly important because the White House proposal does not require law enforcement to provide warning notices before taking action on a drone.
Second, under the proposal, the government’s options for taking action on a drone are not abundantly clear. However, Duong noted that they range from taking over control of the drone, using nets to capture it, or—the most extreme option—shooting it down. She noted that there are few cases in which DHS would find it necessary to shoot drones down. And, as Groves explained, the DOJ is not in the business of destroying evidence.
Third, the panelists addressed concerns about the collection of commercial data by the government. From the DOJ’s perspective, Groves stated, “It is not necessary to access commercial property data to mitigate the threat.” He also noted that any collected data would need to be deleted within six months. As Cooper noted, some companies may even provide more data than required to gain access to sensitive airspace. Extra data would also benefit the government. DHS may not have the resources to track all operators in each area it surveils and providing voluntary information could help determine which operators are safe, similar to how TSA PreCheck works. As Duong noted, “The more we know about you, the more we can leave you alone.”
Moreover, the panelists discussed the importance of unmanned aircraft system traffic management (UTM), a central flight control system for UAS. Cooper argued that true traffic management for drones needs to be implemented to ensure the safety and efficiency of UAS. A UTM would help law enforcement understand what drones are in an area and more easily identify errant or malicious drones.
Drones can bring efficiency and automation across industries. Current regulations, however, still restrict drone use and curtail its expansion. New federal regulations could help provide a standard set of rules that ensure safety and allow for greater adoption and innovation of unmanned aircraft systems. As Ellman said, “The uses (for UAS) are really only limited by our imagination, but the policy and the regulations have struggled to keep up with the technology.”
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