May 24, 2017

The Trump Administration Takes Aim at Drones



Yesterday, The New York Times revealed a proposal from the Trump Administration that would ask Congress for “sweeping powers to track, hack, and destroy any type of drone over domestic soil with a new exception to laws governing surveillance, computer privacy and aircraft protection.” If that sounds concerning, it should be.

The draft legislative text as written permits “the head of an Executive department or agency”  or an authorized “covered person” to take any of the following actions:

(1) Detect, identify, monitor or track, without prior consent, an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo, to evaluate whether it poses a threat to the safety or security of a covered facility, location, or installation or a covered operation, including by means of interception of or other access to wire, oral, electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo.

(2) Redirect, disable, disrupt control of, exercise control of, seize, or confiscate, without prior consent, an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that poses a threat to the safety or security of a covered facility, location, or installation or a covered operation, including by intercepting, substituting, or disrupting wire, oral electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo.

(3) Use reasonable force to disable, disrupt, damage, or destroy an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that poses a threat to the safety or security of a covered facility, location, or installation in a covered operation.

The draft text does note that this proposal should “respect privacy, civil rights, and civil liberties … with regard to the testing of any equipment and the interception or acquisition of communications.” It also makes it clear that these authorities to “detect, identify, monitor or track … redirect, disable, disrupt control of, exercise control of, seize, or confiscate” and/or “use reasonable force to disable, disrupt, damage or destroy” unmanned aircraft systems (UAS) are authorized only by “covered persons” at a “covered facility, location, or installation” or in the context of a “covered operation.” Unfortunately, those supposed limitations are exceedingly broad. The text proposes broad discretionary authority in determining what qualifies as “covered” and defines the various terms as follows:

  • A “covered operation” is “any operation … that is important to public safety, law enforcement, or national or homeland security”;
  • A “covered facility, location, or installation” is “any non-mobile asset … that is designated by the head of a department or agency” as such; and
  • A “covered person” is any federal employee, contractor, “or any other individual that is designated by the head of a department or agency” as such.

In short, these authorities can be vested in pretty much anyone anywhere, subject to the issuance of a government-wide policy that remains undefined by the text. Even more concerning, the proposal notes that “no court shall have jurisdiction to hear any cause or claim, including for money damages, against a covered person arising from any” action taken by a “covered person.” I previously discussed the central role of the TAO (transparency, accountability, and oversight) in surveillance operations. This bill chips away at the oversight component by preventing courts from hearing cases brought by individuals whose privacy interests or constitutional rights may have been impinged.

Of course, security concerns posed by UASs will necessitate reasonable responses. The government has an interest and a duty in securing the national airspace, especially sensitive facilities and operations. However, it already has the authority to exercise the use of force in protecting such installations from errant operators. It is also empowered to impose restrictions on flight within the national airspace “in the interest of national defense” and that are “consistent with national security.” To that end, the Administration would be better served by an approach that would quarantine off facilities from drone operations through use of geofencing technologies (like those used to secure the White House). While geofencing has its limitations, it’s a far better alternative than giving the government broad authority to destroy commercial delivery drones or surreptitiously hack a journalist’s UAS with legal impunity.

As security agency heads prepare to attend today’s closed-door briefing on this proposal, they would do well to pause and consider its ramifications for moving full steam ahead.