Dawn Zoldi on “Counter-Drone Laws Under Fire: The Real Danger Is Constitutional Confusion, Not C-UAS Technology”

Today Lawfire^® contributor and LENS conference speaker Dawn Zoldi addresses something that has been on the minds of a lot of people lately: what can we do to protect ourselves against hostile drones?

The dramatic June 1 attack (Operation Spider Web) by Ukraine on Russian bombers by small, uncrewed aircraft systems (UAS) – commonly know as “drones” – shows that these inexpensive devices can successfully strike the military of an advanced nation-state – a sobering fact for armed forces around the globe. 

Additionally, it is a grim reminder that virtually the same technology can also be wielded by terrorists, criminals, and all manner of rogue actors here at home.

Is the U.S. ready to counter this peril?  Given the dangers drones can pose, you may be surprised to read this observation from Dawn’s essay:

“Yet only a few select groups of federal agencies currently possess the legal authority to detect, track, identify and mitigate drones within U.S. airspace: the Department of Defense (DoD), the Department of Energy (DoE), the Department of Homeland Security (DHS), the Department of Justice (DOJ). Other federal, state, local, tribal, and territorial (SLTT) officials lack these powers. This has led to ongoing calls for expanded legal authorities.”

Dawn advises that recent Senate hearings heard SLTT officials advocate for just such expanded legal tools to address the growing drone threat.  However, one voice argued that the limited authorities already granted to just a handful of federal agencies are themselves unconstitutional. Dawn’s essay provides a counterpoint.

Counter-Drone Laws Under Fire: The Real Danger Is Constitutional Confusion, Not C-UAS Technology

by Dawn Zoldi

While UAS innovations in agriculture, journalism, construction, and entertainment are powerful, they also present real and evolving threats. They can be weaponized, used to deliver contraband, conduct unauthorized surveillance, or disrupt critical infrastructure. These risks are not theoretical. Illicit drone activity regularly occurs at prisons, stadiums, and sensitive government facilities.

Yet only a few select groups of federal agencies currently possess the legal authority to detect, track, identify and mitigate drones within U.S. airspace: the Department of Defense (DoD), the Department of Energy (DoE), the Department of Homeland Security (DHS), the Department of Justice (DOJ). Other federal, state, local, tribal, and territorial (SLTT) officials lack these powers. This has led to ongoing calls for expanded legal authorities.

Much of the Senate testimony revolved around support for additional C-UAS authorities. One witness, however, argued that existing authorities, specifically Section 124(n) of the Homeland Security Act (as amended by the FAA Reauthorization Act of 2018, now 6 U.S.C. § 124n)—the central statute governing federal C-UAS operations outside military and nuclear contexts in the U.S. homeland—violate multiple constitutional provisions.

Concerns ranged from the alleged lack of meaningful restrictions on when, where, and how C-UAS measures can be deployed to allowing the government to take “sweeping actions”—including interception of communications and the destruction of drones—without notice, a warrant, or clear connection to an actual threat.

This provocative position, while interesting, overlooks the principles of statutory construction and fails to appreciate the realities of C-UAS operations.

Congress Provided Authority, Not Tactical Detail

The speaker criticized Congress for not being more specific in 6 U.S.C. § 124(n). When it comes to drafting statutes, rather than prescribing tactical instructions for how an agency should execute a program, Congress historically has provided broad guidance and defined the scope of authority.

This approach has allowed agencies with subject-matter expertise to develop specific implementing policies, procedures, and regulations that can adapt to evolving threats and operational needs.This was especially true in areas involving national security, law enforcement, or rapidly changing technology, where flexibility and expert judgment remain essential.

As Congress did not specify exactly when, where, or how counter-UAS operations should be conducted, under a more recent Supreme Court case, a court could decide what the statute means, if challenged, rather than deferring to the agency’s interpretation. That doesn’t, however, render the law invalid or unconstitutional. It might make it vulnerable to future judicial challenges.

The Actual Implementation of C-UAS Authorities

Section 124(n) empowers DHS and DOJ to “detect, identify, monitor, and track” any UAS that poses a “credible threat” to the safety or security of a “covered facility or asset.” “Credible threat” encompasses physical harm or property damage, interference with government operations, unauthorized surveillance, or the unauthorized disclosure of sensitive information.

Once a credible threat exists, these agencies can warn the operator, disrupt control of the aircraft by taking control of the drone, disabling or interfering with its communications, and, if necessary, use reasonable force to damage or destroy it.

The authorities under Section 124(n) are tightly held. C-UAS activities by DHS and DOJ/FBI require high-level departmental approval (from the Secretary of Homeland Security and the Attorney General) to determine which facilities or assets are “covered” and to authorize the deployment of C-UAS measures to protect them.

The law also requires a risk analysis, close coordination with the Federal Aviation Administration (FAA), and governance through internal policies. The full operational policies, tactics, and approval protocols are not publicly available due to their law enforcement and national security sensitivity. They are, however, subject to oversight and must comply with statutory privacy, civil rights, and civil liberties protections. 

These legal permissions are not permanent. They started as a five-year pilot program. Now in its seventh year, they will expire in September 2025—unless Congress renews them.

C-UAS Technologies, Activities, and Operational Realities

There is no one “C-UAS technology.” Many different technologies exist for airspace awareness and protection. While the circumstances under which these may be deployed vary, the operational activities to do so generally fall into two broad categories: detection and mitigation.

To detect an object means to determine it’s a drone and whether or not it should be flying in a certain location at a certain time. Detection implies the ability to identify the drone in the same way we identify manned aircraft. To maintain understanding of the drone’s location, posture, and potential intent necessitates the need to track it.

Mitigation means taking action to neutralize the threat in some manner—such as jamming, seizing control or physically disabling.

The operational practicalities during a rogue drone encounter often include elements of uncertainty and require split-second decisions. For instance, it is not unheard of for a drone to come zipping towards a stadium or critical infrastructure asset at 100mph. This requires security personnel to act fast.

Running the Traps on Detection With Passive RF

Detection often includes a component of passive RF-monitoring. Passive RF-monitoring technologies essentially “listen” for the control signals drones emit. This same type of technology will also underpin UAS traffic management (UTM), which is the low-altitude traffic management system for drones.

It is analogous to the Automatic Dependent Surveillance-Broadcast (ADS-B) system used for manned aircraft, which squawks an aircraft’s location. In fact, the FAA’s Remote Identification (Remote ID) rule similarly requires drones to broadcast their location and serial number. This information must be accessible to anyone nearby, including the public, with a compatible device.

Fourth Amendment: No Unreasonable Search or Seizure in Public Airspace

The speaker raised concerns that current C-UAS authorities enable the use of technologies, such as passive RF-monitoring, which may violate the Fourth Amendment’s protections against unreasonable searches and seizures. Equating passive RF monitoring with persistent, warrantless surveillance and likening it to general warrants and intrusive geofence data collection, the testimony painted a dire picture of government overreach.

Fourth Amendment protections only apply where there is a reasonable expectation of privacy. Courts have repeatedly held that activities conducted in public—such as driving on public roads or drones flying in the air—do not carry such an expectation.

The FAA’s Remote ID rule provides a compelling analogy. Under this rule, most drones must broadcast their serial number and location data—including the drone’s and pilot’s location—via local wireless signals accessible to anyone with a compatible app.

The D.C. Circuit upheld this rule against Fourth Amendment challenges, noting that the broadcast data is limited to public airspace activity and does not reveal information about private activities conducted within the home or other protected spaces.

The court reasoned that “drone flights are virtually always flown in public,” and thus, “there is no reasonable expectation of privacy in the location of a drone or its operator during flight.” The court distinguished this from persistent, retrospective tracking of individuals, which may raise constitutional concerns under other Supreme Court cases.

Passive RF-monitoring is even less intrusive than Remote ID. It does not broadcast personal information to the public. It merely detects the presence of RF signals that are already being emitted for the drone to function. It does not capture content, personal data, or information about activities inside protected spaces.

Its purpose is to ensure safety and compliance with airspace regulations, not to surveil individuals. There is no physical trespass, no interception of content, and no aggregation of personal data. Monitoring these signals is analogous to observing a vehicle’s license plate, an activity that does not implicate the Fourth Amendment.

First Amendment: No Unlawful Chilling of Speech, Press or Assembly

The argument continued that C-UAS authorities could “chill” First Amendment rights by interfering with drone-enabled newsgathering, protest documentation or artistic expression.

The authorities in 124(n) do not prevent anyone from flying a drone, recording video or assembling in public in general. It does not target speech, press or assembly based on content or viewpoint. The Supreme Court has held that content-neutral, generally applicable regulations that serve a substantial government interest—such as public safety—are constitutional if they are narrowly tailored and do not burden more speech than necessary.

It has also recognized that generally applicable laws do not violate the First Amendment simply because they incidentally affect the press’s ability to gather news. The “chilling effect” doctrine requires more than a subjective fear of government action.

The Supreme Court has also held that even the existence of government surveillance fails to constitute a First Amendment violation unless it causes a specific, objective harm or a credible threat of such harm.

The act of passive RF-monitoring, as applied, does not equate to surveillance and is content-neutral. It simply detects the presence and location of drones by listening for RF signals that are already broadcast in public airspace—akin to police observing a public demonstration or noting the presence of a news van at a protest—activities that do not implicate the First Amendment.

With regard to “chilling effect,” passive RF monitoring fails to meet judicial thresholds as it does not collect the content of speech or target individuals based on expressive activities. In short, passive RF monitoring is not a ban on newsgathering or protest documentation; it is simply a tool to ensure public safety.

Mitigation Actions and Constitutional Protections

Passive RF-monitoring pertains only to the detection, tracking and identification of drones. It’s nevertheless worthwhile to address issues raised relating to mitigation actions, which can be taken once a credible threat presents itself.

            Fourth Amendment: No Warrantless Seizure

The Supreme Court has long recognized exceptions to the warrant requirement, such as exigent circumstances, when there is an imminent threat to life or property. Exigent circumstances allow law enforcement to act without a warrant to prevent immediate harm, destruction of evidence or escape of a suspect.

Tactically, there is often no time to obtain a warrant when a drone is rapidly approaching a sensitive area. If a drone is barreling toward a crowded stadium, critical infrastructure, or a government facility, a lifesaving response must occur in seconds and minutes—not hours or days.

Waiting for a warrant could mean the difference between safety and disaster—or between life and death. The law is clear: when the threat is imminent, and action must be taken to prevent harm, the warrant requirement yields to the necessity of the moment.

That said, if there is sufficient time to obtain a warrant before seizing or destroying a drone, then by all means, our responsible federal officials should get one. In other words, 124(n) does not override the warrant requirement. It provides top cover for actions taken to neutralize a triggering event, such as an imminent threat.

Law enforcement professionals appreciate the line here. For example, in a ground-breaking drone stalker case in Virginia, law enforcement deployed C-UAS tracking technologies to gather sufficient evidence and information to support a warrant.

They then used that warrant to seize the drone and search it. The evidence lawfully gathered was so comprehensive and compelling that the suspect ultimately pled guilty to harassing and stalking the family in question.

Fifth Amendment: No Unlawful Deprivation of Property Without Due Process

Fifth Amendment concerns regarding the deprivation of property without due process have also been raised as a government official could take action to seize or disable a drone, whether by confiscating, grounding, or destroying it.

The Fifth Amendment’s due process clause requires notice and an opportunity to be heard before the government deprives someone of property, except in narrowly defined emergency situations:

• • Imminent threats to life, safety, or national security (e.g., a drone approaching a stadium or critical facility)

• • Circumstances where delay would result in serious harm or loss of evidence

• • Scenarios where the property itself is dangerous or being used for unlawful purposes that require urgent intervention

Courts have recognized that due process is flexible and may be adjusted when there is a pressing need for swift government action (for example, stopping a drone carrying a weapon toward a crowded event or preventing the escape of evidence).

The Supreme Court established a balancing test for due process: the private interest affected, the risk of erroneous deprivation, the probable value of additional safeguards, and the government’s interest.

In the drone context, this means that while the government may act swiftly to neutralize an imminent threat (such as a drone approaching a stadium or critical infrastructure), it must still provide post-deprivation notice and an opportunity for the owner to contest the action and seek redress. These procedural protections are embedded in 124(n), federal administrative law and tort claims processes.

Throwing In A Tenth Amendment Argument

The final argument suggested that federal C-UAS authorities infringe on state sovereignty by asserting federal control over airspace traditionally regulated by the states under the Tenth Amendment.

The Supreme Court has long recognized that the federal government has authority over navigable airspace for the purposes of aviation safety and national security. States retain significant authority over property rights and low-altitude airspace. This does not preclude the federal government from regulating drone operations that ensure the safe and efficient use of the national airspace system.

Here, the issue involves a Congressional statute—not an FAA regulation—that enables federal agencies, such as DHS and DOJ, to employ C-UAS technology to protect critical infrastructure and sensitive mass gatherings. Ironically, the Tenth Amendment arguments presented support SLTT calls for their own legal authorities to conduct C-UAS in their home states. But they don’t preclude the federal government from protecting the homeland.

C-UAS Laws Are Constitutional…and Essential

No one is debating that drones present real and evolving risks to public safety, critical infrastructure, and national security. The debate surrounds what can, and should, legally be done about the threat.

As courts and policymakers continue to grapple with the challenges of new technologies, it is essential to distinguish between invasive, persistent surveillance of individuals versus the non-intrusive detection of unmanned aircraft in public airspace; emergency response to imminent threats versus government overreach; and fact from fiction.

Our law enforcement professionals need to be able to fearlessly take the actions required to neutralize the very real and significant threats to the safety and security of the American public.

We don’t ask our law enforcement professionals to walk down the street with their eyes closed. In the case of passive-RF monitoring, what they can see is what everyone can see: signals and nothing more.

Once they detect an errant or rogue drone, based on established policies and procedures that presumably comport with the law, they should be able to defend the people and property they were sworn to protect and defend. If that action leads to the seizure, damage, or destruction of the drone, and the owner wants to challenge that, processes exist for this purpose.

At a minimum, Congress needs to dismiss the spurious arguments that aim to roll back what little C-UAS authority exists today. Instead, it needs to permanently codify the C-UAS provisions for the federal agencies that have already been dutifully executing them to protect us. The next step: extend them to our brothers and sisters in blue at the local level who are, by definition, our “First Responders.” 

This moment presents the ultimate test as to whether or not the law will keep pace with technology—or leave us exposed to threats that move far faster than the legal debates swirling around them.

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. She is the CEO & Founder of P3 Tech Consulting, Publisher of Autonomy Global and an internationally recognized expert on uncrewed aircraft system law and policy, featured on Fox News, CNN, Forbes and Newsweek and on the PBS television network (show host Emmy-nominated series). Her Dawn of Autonomy podcast was recognized as one of the “Top 7 Drone Podcasts 2024 (The Drone Girl) and the “Best Drone Podcast of the Year  2023” (The Droning Company).

FDI Insider has also recognized her as the Tech Advocacy Champion of the Year – USA 2024, Great Companies in the Consulting Category for the 6th International Women Entrepreneur 2024 Awards and has been listed as one of the Top Women in Aerospace & Aviation to Follow on LinkedIn for several years. Ms. Zoldi 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 Dawn on LinkedIn and sign up for the weekly Autonomy Global Newsletter

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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!