Guest Post: Dawn Zoldi on “Counter-Unmanned Aircraft Systems (CUAS) 101”

Last July a story in the Washington Post headlined “The war in Ukraine is spurring a revolution in drone warfare using AI” and went on to explain that:

“The design and software innovations, as well as mass dissemination of piloting know-how, are also likely to influence the way drones are used far beyond the war in Ukraine, with serious implications for governments confronting separatist militias, drug cartels and extremist groups seeking to gain a technological edge.”

How then will military and law enforcement agencies counter the growing threat from drones?  The Post did say that Ukrainian drone losses to Russian forces could be as high as 10,000 per month, but are such counter-drone capabilities available to more than just militaries?  Moreover, are battlefield technologies and techniques also suitable for domestic security operations against terrorists and other criminals?

Fortunately,  we have the perfect person to help us understand this threat: retired Air Force colonel Dawn Zoldi.  As you can see from her impressive bio below, she is one of the nation’s top experts.  What is more is that she is a great friend of the Center on Law, Ethics and National Security (LENS) and a contributor to Lawfire^® (see here).  Even better, she’s signed-on to speak at the LENS 2024 Conference!

In today’s post she’ll briefly describe a few of the means and methods of defending against drones or, as they are called by many professionals, “uncrewed aircraft systems (or UAS).”  She’ll also outline some the existing domestic law in this area (and its gaps!), and give us a sense of the drone industry’s thinking as to legislation. This is your opportunity to hear about counter uncrewed aircraft systems (CUAS) from one of the stars of the UAS community.

CUAS 101 

Dawn Zoldi, Colonel, USAF (Ret.)

Uncrewed aircraft systems (UAS), commonly referred to as drones, can be used both as a tool in defense of security and also as a weapon that threatens it, including on U.S. soil. Drones can present both physical and cyber threats, both on the battlefield and in the United States. Yet defending against this threat in the homeland remains a challenge, from both a technological and a legal standpoint.

The Drone Threat

 UAS capabilities (e.g., mobility, speed, maneuverability, compact size and range) make them valuable to society. In the wrong hands, these same attributes can make them dangerous…or deadly.

The use of small, commercial off-the-shelf (COTS) drones has become so extensive in the current Russia-Ukraine war that some have referred to that conflict as “the first real drone war.” However, combatants and terrorists have been using drones to do their bidding for years. Across the Middle East, UAS have been used for persistent surveillance, as a payload vehicle to drop hand grenades and payloads and as airborne improvised explosive devices (IEDs).

The problem is that the bad guys often watch what happens overseas to hatch plans for attacks in the homeland. Just a few years ago, in Pennsylvania, an unidentified perpetrator used a modified drone in an apparent attempt to disrupt a local power grid.

With little fanfare or public discourse, for years the Department of Energy (DOE) has been tracking drone incursions at U.S. nuclear reactors and fuel storage sites. Nefarious actors frequently employ drones at our borders, use them to drop contraband into prisons and to conduct corporate espionage (after all, UAS are flying computers). Just this year, a drone allegedly entered a restricted area at the White House and caused a partial evacuation.

The drone threat is as diverse as it is real. As a result, companies have designed technologies to detect, track, identify and/or mitigate rogue drones.

Counter-Drone Technologies 

Counter-drone tech can be generally divided into two main categories: detection and mitigation.

On the detection side, a wide variety of sensors can be used to detect, locate/track and classify/identify drones. These include radar, passive radio frequency (RF), electro-optical and infrared (EO/IR) and acoustic.

Mitigation technologies range from jamming (disrupting RF links between the drone and the ground control station), spoofing (cyber-attacking), net guns or specialized projectile devices to bring the drone down, lasers, microwaves and even drones that capture other drones.

Soldiers, sailors, airmen and marines have deployed all of these measures on the battlefield. In that respect, most of this technology can be considered tried-and-true. But deploying detection and mitigation technology on battlefields afar and using them, for example, at a critical infrastructure site in Ohio, has different implications.

The Federal Aviation Administration (FAA) just completed five years’ worth of Congressionally mandated counter-drone testing at a handful of domestic airports. While the report has not been issued, one responsible official at a recent conference noted that some of this tech has not been performing “as advertised.”

On the other hand, other countries have successfully employed certain counter-drone technologies in cluttered urban environments. For example, in 2021, D-Fend Solutions’ EnforceAir, a precision and cyber-based solution that can safely take over rogue drones and land them in a predefined zone, helped safeguard the Pope and more than 60,000 worshippers, bishops, and priests attending a holy mass from a rogue drone.

The safety and efficacy of using counter-drone technology aside, a swath of federal laws that federal officials have interpreted as prohibiting its use remains the biggest limiting factor to employment.

Federal Counter-Drone Limitations

Today, only the Department of Defense, DHS, DOE and the Department of Justice (DOJ) have affirmative Congressional authority to employ counter-drone technology. Officials from these same federal organizations, and others, have opined that a handful of criminal provisions, mostly in Title 18, relating to aircraft and wireless transmissions, inhibit the use of counter-drone tech. Currently, state, local, tribal and territorial (SLTT) actors and critical infrastructure owners (80% of which are private) lack this authority.

The list of relevant laws is long and includes: 18 U.S.C. § 32, Destruction of Aircraft or Aircraft Facilities (The Aircraft Sabotage Act); 49 U.S.C. § 46502, The Aircraft Piracy Act; 18 U.S.C. §§ 3121-3127, Pen/Trap Statute; 18 U.S.C. §§ 2511 et. seq., The Wiretap Act, or Title III;  18 U.S.C. §1 367, Interference with the Operation of a Satellite; 18 U.S.C. § 1030, The Computer Fraud and Abuse Act.

Counter-drone tech use could also trigger several Federal Communications Commission (FCC) regulations such as 47 U.S.C. § 333, Interference with Radio Communications and 47 U.S.C. § 302a, Marketing, Sale, or Operation of Jammers.

These legal constraints, and the lack of authority for certain SLTT and private actors, presents a significant gap for counter-drone actions. In recent Congressional testimony, a DHS representative noted that her agency could only cover .05 percent of the more than 121,000 events requiring counter-drone protection.

The Current State of Play 

The current FAA Reauthorization expires soon and with it, so does the authority for DHS and DOJ to detect and mitigate credible threats posed by rogue drones. If this authority lapses, the only agencies with such authority left standing will be DOD and DOE.

It remains to be seen whether or not Congress will re-up these powers (originally in the Preventing Emerging Threats Act of 2018) in the FAA Reauthorization or as a stand-alone proposal. Thus far, the House version of the Reauthorization lacks any provisions to do this.

Many in the drone industry continue advocating for not only a continuation of federal counter-drone authorities, but the expansion to SLTT and critical infrastructure owners, such as found in the Safeguarding the Homeland From the Threats Posed by Unmanned Aircraft Systems Act of 2022.

This bill, which died on the vine, would have not only enhanced counter-drone authorities for the DHS and DOJ, it would have extended detection authority to SLTT and critical infrastructure owners. For SLTT, it proposed a pilot program for up to 12 state and local law enforcement entities annually to conditionally engage in counter-drone mitigation.

While authority to use counter-drone technology remains controversial in some circles, it has garnered bi-partisan support in Congress. The topic has also gained unprecedented support from the White House, which released the nation’s first Domestic Counter Unmanned Aircraft Systems National Action Plan.

In the meantime, the clock keeps ticking, but hopefully a drone-laden time bomb does not.

About the author

Dawn M.K. Zoldi (Colonel, USAF, Retired) is a licensed attorney with 28 years of combined active duty military and federal civil service to the U.S. Air Force, and is a Part 107 certified drone pilot. She is the CEO & Founder of P3 Tech Consulting and an internationally recognized expert on uncrewed aircraft system law and policy, featured in CNN, Forbes and Newsweek.

Ms. Zoldi contributes to several magazines and hosts popular tech podcasts. In 2022, she received the Airwards People’s Choice Industry Impactor Award, was recognized as one of the Top Women in Aerospace & Aviation to Follow on LinkedIn and listed in the eVTOL Insights PowerBook. She is the author of the book Unmanned Aircraft Systems Legal and Business Considerations: A Modern Primer for U.S. Drone Programs. For more information, follow her on social media and visit her website at: https://www.p3techconsulting.com.

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University.  See also here.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!