Agencies Release Advisory on “Counter-Drone” Technology Regulations

The Department of Justice (DOJ), the Federal Aviation Administration (FAA), the Department of Homeland Security (DHS), and the Federal Communications Commission (FCC) announced on Monday that they were issuing advisory guidance documentation to help non- federal government, public, and private entities have a better understanding of laws and regulations that could apply to technology capabilities for detecting and mitigating threats posed by Unmanned Aircraft Systems (UAS), such as drones.

“As the number of drones in our airspace continue to rise, it is unsurprising that the availability of counter-drone technologies has likewise increased,” Deputy Attorney General Jeffrey A. Rosen said. “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 agencies stated that the advisory comes when the demand for detection and mitigation is high, but the authority to use said technology is unclear. The advisory “provides a brief overview of various provisions of the U.S. criminal code enforced by the DOJ, as well as federal laws and regulations related to aviation safety and efficiency, transportation and airport security, and the radiofrequency spectrum administered respectively by the FAA, DHS, and FCC.”

Specifically, the DOJ, DHS, the Department of Energy, and the Department of Defense have been given limited authority to potentially detect and mitigate UAS activity, in spite of some otherwise potentially applicable federal criminal laws. However, these Departments and Agencies “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 encourages non-federal entities to follow specific practices, such as consulting with counsel and thinking carefully about the functionality of the detection or mitigation systems and how they will be operated and used. The document noted that to ensure the UAS detection or mitigation systems are employed and used “effectively, responsibly, and legally,” entities must have “[a] thorough understanding of how a system functions and the applicable law.” This includes considering federal, state, and local laws, and the potential implications the detection or mitigation technology could have on privacy as well as civil liberties and rights.