Last week, the Department of Justice (DOJ), the Federal Aviation Administration (FAA), the Department of Homeland Security (DHS), and the Federal Communications Commission (FCC) issued an advisory guidance document to help non-federal public and private entities better understand the federal laws and regulations that may apply to the use of capabilities to detect and mitigate threats posed by Unmanned Aircraft Systems (UAS) operations.
The “Advisory on the Application of Federal Laws to the Acquisition and Use of Technology to Detect and Mitigate Unmanned Aircraft Systems” (the “Advisory”) provides a brief overview of various provisions of the U.S. criminal code enforced by DOJ, as well as federal laws and regulations related to aviation safety and efficiency, transportation and airport security, and the radio-frequency spectrum administered respectively by the FAA, DHS, and FCC.
“As the number of drones in our airspace continue to rise, it is unsurprising that the availability of counter-drone technologies has likewise increased,” said Deputy Attorney General Jeffrey A. Rosen. “Because these technologies may be presented for sale without a full discussion of important legal requirements, this Advisory steps forward to provide an outline of the relevant legal landscape. By encouraging a common understanding of potentially applicable laws, the Advisory can help foster responsible industry growth and promote public safety.”
The Advisory has been issued at a time when the commercial demand for UAS detection and mitigation is high, but the authority to use those capabilities is far from clear. To date, Congress has given limited authority to only four federal Departments – Defense, Energy, Justice, and Homeland Security – to engage in UAS detection and mitigation activities, notwithstanding certain otherwise potentially applicable federal criminal laws. The Departments and Agencies issuing the Advisory do not have the authority to approve non-federal public and private use of UAS detection or mitigation capabilities, nor do they conduct legal reviews of commercially available products’ compliance with those laws.
The Advisory urges entities to take the advice presented in this Advisory seriously – to consult with counsel and think carefully about the functionality of individual detection or mitigation systems, the way the system operates, and the way the system will be used. A thorough understanding of how a system functions and the applicable law is necessary to ensure that, if UAS detection and mitigation technologies are employed, they will be used effectively, responsibly, and legally.
Although the Advisory is an important discussion of potentially applicable federal law and regulations in this space, it cautions that additional state or local laws may apply, and that entities should further consider the impacts such technology could have on privacy, civil liberties, and civil rights.