Legal Challenges Facing Civilian Counter-UAV Systems

Consumer/commercial unmanned aerial vehicles (UAV) sales and operations are increasing rapidly according to sales figures, media reports, and various studies. So too are unconventional uses of these drones by non-state actors and criminals, as well as perceived privacy violations by regular operators. The result is a well funded rush to develop UAV detection and counter measure systems for military and civilian use. At present, someone employing a counter-UAV system may be engaged in more serious criminal activity than the operator of the UAV. If the legal challenges affecting the deployment of these systems are not addressed, not only will those investments be put at risk but our nation may be exposed to greater risk of malicious UAV operators.

The technical challenges and efficiency of the solutions are often shrouded behind intellectual property protection at various startup companies. The legal challenges, however, are clearly defined in existing public law and regulation. We all have a vested interest in working with local, state, and federal lawmakers to enact new regulations that will enable individuals, corporations, and law enforcement agencies to effectively and legally defend against malicious UAVs.

For the purposes of this article we will define an Unconventional Small Unmanned Aerial System (UsUAS) as a UAV plus support ground control systems with the following characteristics:

Military Group 1 UAV (0-20 lbs maximum weight, less than 1200 ft AGL operating altitude, less than 100 knots)
Available to civilians without a license or other documentation
Priced below $5,000
Operated by terrorist, criminal, or malicious actors

Detection, Determination, and Response

Short of establishing a hard physical, electronic, or radio frequency barrier around an installation, anyone wishing to defend a site against a UsUAS must go through three stages – detection, classification, and neutralization. Once detected, the malicious nature of the operation must be determined before moving on to deterrence measures. The mere presence of a UAV in civilian airspace does not define malicious behavior. Finally, even if a UAV is detected and classified as malicious the legal response options are almost exclusively limited to after the fact administrative, civil, or criminal charges.

In the United States there are very few areas where aircraft crossing a perimeter may automatically be treated as hostile or at least malicious. A declared National Defense Airspace as was used for the 2017 Presidential Inauguration is the most recent example.[i] In addition to civil and criminal charges, “the United States government may use deadly force against the airborne aircraft, if it is determined that the aircraft poses an imminent security threat.” These are the only areas within the United States borders where deadly force is authorized against aircraft, which includes UsUASs. Recent incursions into the airspace over the White House by UsUASs[ii] and by small aircraft[iii] illuminate both the difficulty of detecting incursions by these types of aircraft and the perceived unwillingness to engage them even over the most critical building in the United States.

Temporary Flight Restrictions (TFRs) issued by the FAA provides for temporary control of the airspace by other agencies and allows them to administratively control access to the airspace. Access violations are addressed through civil and criminal charges, if the operator can be located. Deadly force is not authorized under the Federal Aviation Regulations or their underlying statutes.

For several years agencies fighting wildfires in the western part of the United States have engaged in an ongoing dance with UAV operators who violate the TFRs established to enable aviation assets to safely operate near the wildfires. “Twenty-one drones were spotted at the scenes of wildfires nationwide in 2014-2015, and aircraft were grounded six times. And there have been at least two occasions when firefighting aircraft have had to take evasive actions to avert a collision with drones.”[iv] Few operators have been detected or charged. One operator was charged with a misdemeanor for interfering with firefighting operations and fined $1,000. California failed to pass a more strict law with harsher punishments.

The legal opportunities to challenge UsUAS operations over most federal lands open to the public as well as private or commercial property are even more limited. The debate hinges around two core issues: Who controls the airspace and privacy.

It is generally accepted that the Federal Aviation Administration controls all of the National Airspace (NAS). Many jurisdictions are attempting to write laws that depend on their ability to regulate local airspace, something they have no legal authority to do. Orlando, FL recently crafted an ordinance that may be more successful in defending against challenges by addressing the use of city land rather than the airspace. “It is prohibited to cause an unmanned aircraft to launch or land, or for any person to operate or assist in the operation of any unmanned aircraft system out of doors unless permitted to do so by the City of Orlando, when that person is on city property.”[v]

The vast majority of citizens in the United States desire to be free from surveillance by the government and by other citizens. Unfortunately, there are essentially no laws that protect an individual’s privacy outside of the walls of their homes. Any effective law would need to apply to all forms of aerial surveillance including helicopters, airplanes, and satellites. UAVs reignited and fueled debate and possible regulations addressing privacy protection from aerial surveillance but there are no broad laws in place that provide for civil or criminal redress, and particularly no laws that provide for shooting, netting, jamming, or hacking into an UsUAS.

Counter-USUAS Options

Non-military UAVs are susceptible to a variety of attacks that may disable them in flight, cause them to return to the launch point, or grant the attacker control over their operation. Methods range from shotguns to GPS jammers to nets and even to birds. Unfortunately, utilizing any of these methods in most domestic situations is illegal.

We will give examples of each type of attack, the operator’s ability to counter the attack, and examples of laws that any attacker could be charged with violating.

The following legal options for charging the person attacking the UsUAS will be used for each type of attack. In addition to these criminal charges, a variety of civil charges could be filed.

State criminal offenses

Larceny – The unlawful taking and carrying away of someone else’s property without the consent of the owner; and with the intent to permanently deprive the owner of the property.[vi] (state or local)
Criminal mischief – Intentionally or knowingly damaging someone else’s property (state or local)
Reckless endangerment – Carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people’s rights to safety (state or local)

Federal criminal offenses

Destruction of aircraft – Sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce. (18 U.S. Code § 32)
Jamming – The use of devices designed to intentionally block, jam, or interfere with authorized radio communications is a violation of federal law.[vii] (The Communications Act of 1934, 18 U.S.C. § 1362, 18 U.S.C. § 1367(a))
FCC Violation – Operating an unlicensed transmitter or interfering with the legal operation of another transmitter. (The Communications Act of 1934, Sections 301 and 333)
CFAA – “Knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer” (Computer Fraud and Abuse Act, 18 U.S.C. § 1030)

Any attack that causes the aircraft to stop operating in a normal manner opens the attacker up to being charged with criminal mischief if the UAV or property on the ground is damaged as a result. Any attack that causes the aircraft to cease operating will add opportunities to charge the attacker with robbery, reckless endangerment, and destruction of aircraft due to the likelihood that the aircraft will strike the ground in an uncontrolled manner. Any attack using a transmitter to jam or access the control or data links on the aircraft will expose the attacker to being charged with FCC violations. Any attack using a transmitter to jam GPS signals, command links or data links will expose the attacker to all of the above.

Some attacks, and specifically GPS jamming attacks, have the potential to create safety risks far beyond the offending aircraft and could result in significant charges. Discharging a firearm against an offending aircraft could result in injury or death to individuals other than the operator and is almost always a crime. Deadly physical force may only be legally used against deadly physical force.

Physical/Kinetic

A physical attack on a UsUAS is intended to cause the aircraft to cease operating. Example attacks include firearms, nets, and birds.

The UsUAS operator can attempt to counter such an attack by flying erratically, either manually or via an automated flight path. Other defenses would require modifications to the aircraft that would likely be out of proportion to its value.

A successful attack will cause the aircraft to fall to earth in an uncontrolled manner. The person conducting such an attack could be charged with larceny, criminal mischief, reckless endangerment, and destruction of aircraft.

Jamming

Most commercial UAVs can be configured to “fail safe” in the event of unexpected loss of signal or interference. An attacker can jam the GPS signal, causing the UsUAS to lose one of the guidance options. This normally results in erratic behavior. A very careful GPS attack could force a UsUAS to land. An attacker can also jam either the control link used to operate the aircraft or the data link used to receive sensor data from the aircraft or both. Jamming the control link will result in a normally configured UAV to return to home and land.

A malicious operator can acquire a UAV capable of operating without a GPS signal or manually fly a standard UAV that has lost the GPS signal. This capability exists to allow indoor and other obstructed operations. The operator can disable the “return to home” function in the event of a control link loss and enable the UAV to continue operating in an autonomous mode.

Hacking

Most commercial UAVs depend on a radio frequency communication link to enable the operator to control the aircraft either directly or through a ground control station that enables semi-autonomous flight. This communication link is poorly secured in most cases and exploits are available for all major commercial UAVs. A defender can detect the frequencies in use and send signals on those frequencies to take control of the aircraft from the original operator. The defender will then attempt to land the aircraft either to terminate the operation or to seize physical control of it.

It is difficult to configure most off the shelf commercial UAVs to operate without any control link. However, there are some off the shelf UAVs equipped with flight controllers that can easily be configured to shut down the radio link and then operate in a fully autonomous mode. Once configured in this manner, the UsUAS is impervious to such attacks. It is also possible to utilize non-standard radio link systems or cellular network links to control the aircraft and thus prevent an attack on the control link. Such a configuration would still be detectable through radio frequency scans and possibly susceptible to jamming attacks.

The person conducting such attacks could be charged with larceny, criminal mischief, reckless endangerment, and destruction of aircraft depending on the outcome. The person could be charged with a FCC violation for operating an illegal transmitter as well as a FCC violation for jamming. And, in addition to all of the above, the person conducting the attack is now remotely accessing a computer system without permission, a violation of the Computer Fraud and Abuse Act.

Summary

Technical issues aside, there is insufficient broad legal support to enable a defender to determine that the behavior of a commercial UAV is malicious and thus subject to actions to cease such operations or charge the operator. Further, existing and frequently applied local, state, and Federal laws make almost all of the options available to counter malicious UAV operations illegal. These laws apply to civilians and law enforcement alike, and either group would require exemptions to deploy any of the known counter-UAV systems.

We must face the fact that there are very limited circumstances where physical force or electronic countermeasures are authorized against aircraft, including UsUASs. In all other circumstances, the legal options for defending against a UsUAS are all after the fact measures that require identifying and locating the operator. These are not significant barriers against non-state terrorists and criminal actors.

Our investment in counter-UAV technology should be matched with investment in updated laws and regulations to enable the deployment of these systems by organizations charged with defending our infrastructure and airspace. Failure to do so may put the public at risk. Failure to do so may also result in reactionary regulations passed immediately after a malicious event that would negatively impact an industry already challenged by overly burdensome regulations.

Endnotes

[i] “FLIGHT ADVISORY NATIONAL SPECIAL SECURITY EVENT 2017 PRESIDENTIAL INAUGURATION FESTIVITIES” (Federal Aviation Administration, December 2016), https://www.faasafety.gov/files/notices/2016/Dec/2017_Inauguration_Advisory.pdf.

[ii] Michael S. Schmidt and Michael D. Shear, “A Drone, Too Small for Radar to Detect, Rattles the White House,” The New York Times, January 26, 2015, https://www.nytimes.com/2015/01/27/us/white-house-drone.html.

[iii] “Florida Mailman Lands a Gyrocopter on Capitol Lawn, Hoping to Send a Message,” Washington Post, accessed January 30, 2017, https://www.washingtonpost.com/local/florida-mailman-lands-a-gyrocopter-on-capitol-lawn-hoping-to-a-send-message/2015/04/15/3be11140-e39a-11e4-b510-962fcfabc310_story.html.

[iv] Jeff Daniels, “Feds Turn up the Heat in Fight against Drones Interfering in Wildfires,” CNBC, July 26, 2016, http://www.cnbc.com/2016/07/26/feds-turn-up-the-heat-in-the-fight-against-drones-interfering-in-wildfires.html.

[v] “ORDINANCE NO. 2016-87” (The City Council of Orlando, Florida, December 7, 2016), http://www.mynews13.com/content/dam/news/images/2017/01/4/Drone_UAS_Ordinance_-_12_7_2016.pdf.

[vi] “Definition of Larceny.” Findlaw. Accessed February 09, 2017. http://criminal.findlaw.com/criminal-charges/definition-of-larceny.html.

[vii] “Jammer Enforcement,” Federal Communications Commission, March 3, 2011, https://www.fcc.gov/general/jammer-enforcement.