Security Policy Alert: Interagency Issues Advisory on Use of Technology to Detect and Mitigate Unmanned Aircraft Systems
August 18, 2020
Today, 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 radiofrequency spectrum administered respectively by the FAA, DHS, and FCC.
The document is for informational purposes only, and recommends that, prior to the testing, acquisition, or use of detection or mitigation systems, entities seek advice of counsel experienced with federal and state criminal, surveillance, and communications laws. As we previously highlighted in a May 2019 Regulatory Alert, the advisory document highlights guidance that FAA already provided to airport sponsors interested in evaluating or deploying UAS detection systems.
Federal Criminal Laws. The document begins with an overview of various provisions of the U.S. criminal code that may impact acquisition or use of UAS detection and mitigation equipment. It notes that only DOD, DOE, DOJ, and DHS have authorization from Congress to conduct UAS detection and mitigation activities, and FAA has been authorized to engage in limited testing activities, notwithstanding otherwise potentially applicable federal criminal laws. The document emphasizes that no other entities, including state and locals, have been granted such authority or relief from these criminal laws. It also highlights examples of these federal criminal laws (e.g., the Wiretap Act), and provides questions for counsel to consider as they evaluate how these laws apply to technology ("what information is the technology collecting?").
Additional Federal Laws. The second half of the document highlights laws and regulations administered by the FAA, FCC, and TSA that may be implicated by the use of detection or mitigation equipment.
Today, 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 radiofrequency spectrum administered respectively by the FAA, DHS, and FCC.
The document is for informational purposes only, and recommends that, prior to the testing, acquisition, or use of detection or mitigation systems, entities seek advice of counsel experienced with federal and state criminal, surveillance, and communications laws. As we previously highlighted in a May 2019 Regulatory Alert, the advisory document highlights guidance that FAA already provided to airport sponsors interested in evaluating or deploying UAS detection systems.
Federal Criminal Laws. The document begins with an overview of various provisions of the U.S. criminal code that may impact acquisition or use of UAS detection and mitigation equipment. It notes that only DOD, DOE, DOJ, and DHS have authorization from Congress to conduct UAS detection and mitigation activities, and FAA has been authorized to engage in limited testing activities, notwithstanding otherwise potentially applicable federal criminal laws. The document emphasizes that no other entities, including state and locals, have been granted such authority or relief from these criminal laws. It also highlights examples of these federal criminal laws (e.g., the Wiretap Act), and provides questions for counsel to consider as they evaluate how these laws apply to technology ("what information is the technology collecting?").
Additional Federal Laws. The second half of the document highlights laws and regulations administered by the FAA, FCC, and TSA that may be implicated by the use of detection or mitigation equipment.
- FAA - The FAA portion focuses on laws and regulations related to use of airspace, airport operating certifications, structures interfering with air commerce, and grant approval. For example, under FAA regulations, airport operators may need to update the contents of their airport certification manuals to include operating procedures for the use of a UAS detection system.
- TSA - TSA's section provides an overview of the agency's authority to ensure the security measures at airports and other transportation facilities, as well as TSA's authority to take appropriate action to address threats. It highlights TSA's regulations requiring airports to establish security programs, and that these programs must provide law enforcement personnel in the number and manner adequate to support the program. Finally, the section notes TSA's enforcement authorities, including the ability of the Administrator, in consultation with the airport operator and law enforcement authorities, to order the deployment of personnel at any secure area of the airport to counter threats to aircraft and aircraft operations or to address national security concerns, such as those posed by UAS.
- FCC - The FCC's section highlights laws relating to the radiofrequency (RF) spectrum. Many C-UAS detection and mitigation systems use RF technology. This section explains that any system that involves emission of radio waves, including radar, must be evaluated for compliance with laws and regulations administered by the FCC.
The Department of Justice issued a press release announcing the document's release and TSA shared the information with AAAE.
As always, please do not hesitate to contact us if you have any questions or need any additional information.
