Future Tense

When Can the Government Shoot Down Civilian Drones?

A new law gives authorities more power to take down possible threats—but some civil liberties groups worry that it goes too far.

A drone against a sunny sky.
Leonid Eremeychuk/iStock

The Federal Aviation Administration Reauthorization Act of 2018 is not the most exciting-sounding piece of legislation in the world. The 1,200-page bill, which funds the FAA through 2023 and covers everything from airplane seat size to airport noise, was signed by President Donald Trump on Oct. 5 with little fanfare—even less than it might have ordinarily received, thanks to the drama of Brett Kavanaugh’s confirmation. But it could have used the scrutiny: Embedded within it are provisions that give the government new authority to take down civilian drones. And that’s worrisome.

The omnibus legislation included the Preventing Emerging Threats Act of 2018, which authorizes the Department of Justice and the Department of Homeland Security to “take actions” to “mitigate a credible threat (as defined by the Secretary or the Attorney General, in consultation with the Secretary of Transportation) that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset.” This “mitigation”—which wouldn’t require a warrant, or judicial review or oversight—could include physically disabling the drone, taking it over, intercepting its communications, and seizing the drone itself.

Lawmakers argue they need this new authority to better protect large events and special facilities from drone attacks as well as to give government the breathing room it needs to test out new counterdrone technologies in a real-world environment. At first glance, this seems eminently reasonable. Who, exactly, thinks that ill-intentioned (or just incompetent) drone pilots should be given a free pass to fly over government facilities without experiencing consequences?

The problem with the Preventing Emerging Threats Act is that it fails to adequately protect the rights of reporters, activists, and average citizens who have legitimate reasons to use drones. For starters, the act vaguely defines what it means by “credible threat” and “covered facility or asset.” That determination is up to DHS and DOJ, which aren’t required to publish what definitions they come up with. As written, the definition of “covered facility or asset” could include everything from prisons to Super Bowl games to disaster response areas—and there is no requirement that the government publicly state where these places are so drone pilots can avoid them. While the act authorizes DOJ and DHS to give “discretionary notice” to drone pilots who might inadvertently fly over these areas, it doesn’t require them to do so. As there is still no good way to remotely identify drones and their respective pilots in airspace, it’s unlikely these agencies could issue on-the-fly warnings even if they wanted to. (While the FAA Reauthorization Act does expedite the development of such a system, it’s a few years away from being used in the real world.)

What’s more, the act doesn’t provide for any specific type of post-hoc review, redress, or compensation for drone pilots whose aircraft are destroyed or seized. (It doesn’t specifically rule this out, either.) Nor does it provide special accommodation for news media or other groups, like civilian disaster responders, that might have a legitimate interest in flying over protected areas—an accommodation that already exists for manned aircraft used by media. Without any means of telling who’s flying what drone for what purpose, it seems possible that some law-abiding drones will accidently be shot down, disabled, or even surveilled by government authorities. The new legislation also specifically exempts DHS and DOJ from the Wiretap Act and the Pen Register and Trap and Trace Act, which are supposed to protect citizen’s electronic communications from being spied on by the government. In practice, this could mean the information the drone is collecting could be collected or seized—a particular concern for activists and reporters. This might include specific sensitive information, such as aerial video that clearly shows abusive actions by DHS or DOJ agents.

These anti-drone measures aren’t just a matter of lost money or inconvenience for drone pilots, either. Counterdrone technology remains largely experimental. We lack good methods for intercepting or jamming the communications of a specific drone without affecting nearby electronic devices. (Those famous Dutch anti-drone eagles, I would like to reiterate, didn’t actually work.) There’s also some inherent physical risk in using them: What happens if authorities decide to take down a drone over a Super Bowl game or a mass protest, and it lands on somebody’s head? The act’s language requires that DOJ and DHS conduct research and testing of counterdrone systems, and that they coordinate with the FAA, before they use them in real-world situations. However, it’s unclear how extensive this research and testing would have to be, or if this would apply to less-technologically novel methods of taking down drones, like shooting at them.

Taken together, the act’s provisions could be abused to impede journalism and other legitimate drone uses. While it specifically states its implementation can’t interfere with the First and Fourth amendments, it doesn’t specify how this will actually work. We have recent examples of journalists using drones in areas that would likely be covered under these new rules: This summer, a number of reporters used drones to shoot disturbing images of government detention centers used to house children in the American Southwest. We also have examples of government pushback on info-gathering drones: In 2016, the FAA set up a Temporary Flight Restriction—applicable to civilians only—around the Standing Rock protests in North Dakota, in what many observers saw as an effort to shut down drone-flying activists. Finally, the Trump administration is notoriously hostile to journalists. How confident should we be that the act will be used impartially and fairly?

Drones aside, the inclusion of the Preventing Emerging Threats Act in the hefty FAA Reauthorization Act also aligns with what some see as an accelerating legislative trend: rushing bills that ought to have been subject to more deliberation and debate through the process. “Congress stuck this into a last-minute must-pass bill,” says India McKinney, a legislative analyst at the Electronic Frontier Foundation. “This isn’t how this should operate. We’re seeing this happen on a number of different fronts, and it’s hard for us as advocates to do what we do if we can’t see the text of the bill until it’s a done deal.”

Not every drone user, it should be noted, is opposed to the Preventing Emerging Threats Act. Representatives of the commercial drone industry have largely welcomed it. Proponents argue that accepting this bill now is a wiser move than waiting for a dangerous drone attack to take place in the U.S., which would likely trigger far more extreme anti-drone legislation. They point out that drone users should focus on proposing better strategies for countering threats from dangerous drones, rather than on opposing legislation that is trying to solve the problem. And there are real security concerns linked to civilian drones. At a recent Senate hearing, FBI Director Christopher Wray warned, “Terrorist groups could easily export their battlefield experiences to use weaponized [drones].” He specifically mentioned fears about drones being used to attack “mass gatherings.” Now, I’m not exactly convinced that drone attacks will become as regular a feature of American life as mass shootings. But I do think that we should take active technical and legal measures to mitigate the threat.

As a drone researcher and reporter, I hold out hope that the Preventing Emerging Threats Act won’t be used in reckless or abusive ways. But I’ll be watching the skies (and the Trump administration) closely.