Published on:

Drone Defenses Part I

The proliferation of drones, or unmanned aircraft systems (UAS), has resulted in a growing interest in preventing unlawful and potentially dangerous drone operations. Private entities are generally prohibited from taking self-help defensive actions (i.e., shooting down drones) and doing so may result in civil and/or criminal penalties.  As the interest in defenses grows, Congress has authorized the FAA to create more No-Drone Zones and funded an FAA pilot program for government defense technologies to protect government assets.

Although many are looking forward to taking advantage of the FAA’s new rules regarding commercial operations of small UAS (Part 107), others remain concerned about the security and privacy issues that UAS pose. The FAA receives hundreds of reports each month from pilots, citizens or law enforcement agencies about unauthorized UAS operations.

In light of these concerns and reports, the FAA has begun working with private companies to test detection and defense systems for government use at airports where drones are typically prohibited absent special air traffic control approval. Congress has also funded a $6 million FAA pilot program to mitigate airspace issues at airports and other critical infrastructure through the development, testing, and deployment of technologies that mitigate threats posed by errant or hostile UAS without interfering with safe operations.

Generally, private entities must contact local law enforcement to report unlawful operations, making it important to know the many reasons why a UAS operation may be in violation of either Federal or local laws. Private entities may also take advantage of an increasing number of state laws that protect privacy or prevent the use of drones for harassment purposes, as well as related civil remedies, such as temporary restraining orders.  On the other hand, willfully damaging, destroying, disabling, or wrecking any aircraft may result in fines up to $250,000 or imprisonment not more than 20 years, or both.  When using certain technologies as a defense against UAS (i.e., jamming devices), individuals may face additional penalties under FCC rules.

Meanwhile, Congress has begun to allow private and government entities to petition for restrictions and protect critical infrastructure. The FAA Extension, Safety, and Security Act of 2016, enacted this summer, allows any person to petition the FAA to prohibit or restrict the operation of UAS in close proximity to a fixed site facility in the interest of aviation safety, protection to persons and property on the ground, national security, or homeland security.  Eligible sites include critical infrastructure (i.e., energy facilities and equipment), oil and chemical facilities, amusement parks, and “other locations that warrant such restrictions.”  Other proposed legislation would authorize the Department of Defense or the Energy Department to take defensive actions against UAS.

To address the continuing risks that UAS have been posing at airports, some airports have independently imposed “No Drone Zone” designated areas and started public campaigns to prevent these hazardous operations.  However, the enforceability of such areas is questionable, particularly with the FAA’s authority to regulate the use of airspace, often found to preempt local rules.  It is likely that airports will avail themselves of the new provisions in the Act to prohibit flights near airports

In our next defense-related post, Drone Defenses Part II, we will explore additional issues raised with the FCC’s regulation of jamming devices that may be used to interfere with UAS flights.