Drones: are we seeing the dawn of a new and threatening era? (Yes!)

In this morning’s Washington Times there’s a report about the drone attack on Venezuelan President Nicolas Maduro.  As the Times accurately points out, “the video of panicked security officers breaking ranks to escape the threat — appeared to mark the dawn of an era in the battle between security and technology.”

I was one of several contributors to the story, and I was pleased at how much the reporters included in the final version, but here for you is the full input I provided them: 

“This is a very worrisome development because it’s relatively easy to weaponize an off-the-shelf drone, but rather more complicated to defend against it. What makes drones especially dangerous is that an assassin doesn’t need to be able to get particularly close to his target, and he doesn’t need to be an expert marksman.  It seems inevitable that we’ll see terrorists and criminals increasingly seek to exploit this technology. 

There are anti-drone technologies that can and will be deployed by countries with the resources to do so to protect major figures and events, but they won’t be available everywhere for everyone.  We need to help local police departments acquire the systems that are available today since they seem to be effective against at least some commercially-available drones.  

In addition, we need to make sure that we have the legal architecture in place to allow authorities to address this problem. Just a few weeks ago Homeland Security Secretary Kirstjen Nielson said that her Department “does not currently have the authority to identify or monitor drones.” She said the “threat is real now” but that “DHS has no authority to combat this threat.” That has to change. 

But there is no silver bullet. What we need to do now is to very rapidly acquire and deploy a variety of technologies in a coordinated manner, as well as enact the right legal authorities to counter this threat. Otherwise, we’ll have to brace ourselves for some terrible events.”

My comment about anti-drone systems being acquired by police departments is based on this story from last April in the Los Angeles Times about the Oceanside Police Department getting a $30,000 anti-drone system donated by a technology company.  I believe we are rapidly approaching (if were not already there) the time when most police departments will need these defensive capabilities.

Secretary Nielsen at the Aspen Security Forum, July 2018

I included the remarks from Secretary Nielsen that I heard at the Aspen Security Forum last month because they reflected what might be done from a legal perspective to better defend against this emerging threat. I hadn’t met her before, but I must say, she’s impressive (particularly as to how she handled tough questioning on a variety of topics from Peter Alexander, the National Correspondent for NBC News).

A lawyer herself (a UVA grad) she spoke about the legal challenges the Department of Homeland Security (DHS) faces in dealing with drones. Here’s an extract from the transcript of her remarks (here’s the video):

“On emerging threats, an example that we’ve been very focused on lately in addition to [inaudible 00:52:14] was drones. DHS does not currently have the authority to identify or monitor [inaudible 00:52:21] drones.  

But that threat is real now. We see them dropping drugs over the border, we see them surveilling sensitive locations, we see then disrupting the communications of law enforcement. So this is not a question of if, this is happening now. DHS has no authority to combat this threat. So what we need to do is become much more nimble, flexible, dare I say, work with congress to have a better organization so that we don’t have to go to 80, 90 committees to get the authorities that we need.  

But I think as threats advance, we need the authority and then we can build the capacity. So it’s a change in posture and it’s change in how we look at the threat. But we have to be very aware that the threat is changing very quickly and we have to adjust accordingly.

The Department of Transportation’s (DOT) Federal Aviation Administration does have some rules for the regulation of drones, and DOT recently inaugurated a “new three-year Drone Integration Pilot Program aimed at expanding the testing of new drone technology in a select number of local, state, and tribal jurisdictions.” However, DOT’s efforts are mainly aimed at flight safety and regulating the private sector, not so much on countering the terrorist and criminal threats that concern Secretary Nielsen and DHS.

Greg Speirs at his commissioning in December 2014.

The military, of course, operates drones, and not just in overseas combat zones but here at home as well. Captain Greg Speirs, an Air Force Judge Advocate (who is another NCCU Law grad who took his national security law courses at Duke Law) has become a real authority on the domestic use of military drones, something he credits to his mentor, recently-retired Colonel Dawn Zoldi.

Colonel Dawn Zoldi, USAF (Ret.)

For my money, nobody knows more about the domestic use of military drones than my friend (and a fellow Villanova Law grad!) Dawn Zoldi. (For more about Greg, see here, and for more about his scholarship and that of Colonel Zoldi, see here.)

Greg recently put his expertise to use by participating in a joint force panel on “Military Drone Use and Regulation Challenges – And How They Relate to the Private Sector” held at the 2018 International Conference on Unmanned Aircraft Systems in Dallas, TX.

Greg advises that the panel:

Capt Speirs, 2018

[“P]rovided a great opportunity to speak to both United States citizens and an international audience about the numerous oversight regulations governing domestic DoD [Department of Defense] UAS [Unmanned Aircraft Systems] use. Overarching, there are three large requirements for use of a DoD UAS domestically: 1) compliance with the Federal Aviation Administration through a waiver, 2) correct approval authority as set out by a 17 February 2015 Deputy Secretary of Defense Memoranda on UAS (restricting surveillance against US Persons (USPER) and requiring a Proper Use Memoranda (PUM)), and 3) privacy protections as extended from Executive Order 12333 and Title 50, balancing the effective need for intelligence with the concern of protecting the constitutional rights of United States citizens.  

Discussion further included a contrast of UAS operation by explaining the Coast Guard’s primary role of law enforcement against how the DoD considers UAS an Intelligence, Surveillance and Reconnaissance platform, with use domestically centered on training (and not law enforcement).”

Obviously, there’s lots going on regarding drones (or UAS as the military calls them), so look to see further discussion about them on Lawfire®  

Still, as we like to say on Lawfire®, check the facts, assess the law and the arguments, and decide for yourself!

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