The US Congress appears poised to make another push to pass counter-drone legislation after efforts last year failed, seeking to develop regulations for expanding authority beyond the federal government to confront rogue drones.

Rep. Troy Nehls (R-Texas), chair of the House of Representatives aviation subcommittee, during a Feb. 6 hearing called for Congress to “establish a properly scaled, well-balanced and legally sound framework for counter-drone authorities and the corresponding technologies.” He noted existing technology that could jam unauthorized drones cannot be used by state and local law enforcement—even when UAVs are in airspace over airports—because the federal government has lagged in developing rules.

“In the federal government, what we do is we want to kick the can down the road and just have more studies,” he said. “I'm done with all the studying. Let's come up with a solution to the problem.”

Lawmakers are tasked with determining who beyond the federal government should be able to use counter-UAS technology and what mitigation means would be allowed. 

Regulations governing both the use of counter-drone technology and airspace restrictions have to be balanced so authorized commercial operations can continue to operate effectively and the industry can grow, Commercial Drone Alliance (CDA) Executive Director Lisa Ellman said.

Lawmakers and regulators should support “scaling authorized and legitimate commercial drone operations for all kinds of beneficial use cases,” she told Commercial UAV News. “But then we can focus on preventing the careless, the clueless and, very importantly, the criminal.”

Currently, five federal agencies have authority to engage in counter-drone activities of varying degrees: The departments of Defense, Energy, Homeland Security (DHS) and Justice (DOJ), as well as the FAA. 

DHS and DOJ have the most direct authority to engage in counter-drone action, but even their authorization to do so has been repeatedly temporarily extended. Legislation could potentially solidify the authorization for those agencies to engage in counter-drone activities longer term. 

Ellman said there are circumstances when counter-drone authority should be expanded beyond the federal government. “We think in areas which are highly-sensitive airspace, whether around nuclear facilities or prisons or at sporting events, it makes sense that you would need the states or localities, not just the federal government, because there's no way that the federal government has the resources to be everywhere all the time,” she explained.

Ellman testified at the House aviation subcommittee hearing, encouraging lawmakers to set regulations to keep pace with counter-drone technology development.

Dallas-Forth Worth International Airport has a drone detection system that Chris McLaughlin, the airport’s executive vice president of operations, said identifies over 5,000 “legitimate drone flights in our five-mile radius annually.” He told lawmakers that every year “about 150” drones are operated “inappropriately.” But the airport and local authorities cannot take any counter-drone measures.

Vic Moss, the CEO of the Drone Service Providers Alliance, said expanding authority to conduct drone mitigation should be defined and limited. “I think there needs to be an expansion of mitigation,” he told Commercial UAV News. “But under very, very carefully controlled situations. You can't have drone mitigation technology in the back of every cop car.”

Currently, any counter-drone action taken, whether non-kinetic (hacking, jamming) or kinetic, falls under federal criminal statutes regarding interference with an aircraft.

Taking out a drone would violate the Aircraft Sabotage Act, according to Catherine Cahill, director of the Alaska Center for UAS Integration at the University of Alaska Fairbanks.

Testifying at the House hearing on regulating counter-drone measures, she added that “tapping into the communications between the UAS and its operator potentially violates [multiple federal laws including] the Pen/Trap Statute, the Wiretap Act, the Aircraft Sabotage Act, the Computer Fraud and Abuse Act, and others designed to protect the privacy of US citizens. Therefore, anyone conducting counter-UAS activities must receive relief from these statutes or face imprisonment.”

Interfering with the operation of an aircraft can lead to a sentence of up to 20 years in federal prison. 

Cahill warned lawmakers that allowing kinetic actions poses dangers. “Examples of kinetic solutions include: nets, collisions with other UAS, projectiles and lasers, among others,” she said. 

These solutions, she added, “have the potential to adversely impact authorized UAS, manned aircraft [and] people or property on the ground … If a counter-UAS system operator disables or destroys a UAS, the UAS, or fragments of the UAS, will fall on whatever is below them or is located wherever they finally crash. This could cause human injuries or fatalities, property damage [and] risk to other systems.”

House members on both sides of the aisle have expressed interest in reviving legislation along the lines of previous bills that had bipartisan support, yet “we were unable to get the [legislation] over the finish line last year,” Nehls said. 

Previously-proposed House bills—such as the Counter-UAS Authority Security, Safety, and Reauthorization Act and the Safeguarding the Homeland from the Threats Posed by UAS Act—mandated the creation of a counter-drone pilot program in which designated state and local authorities could trial counter-UAV technology under oversight of federal agencies.

“There needs to be a pilot program to enable the testing of mitigation technologies in various types of environments, and the pilot program needs to be large enough that we have an actual sample size over the course of several years,” Ellman said. 

Voss said it is important that drones continue to be defined as aircraft in legal terms, with all of the protections from operational interference that come from that designation. 

“I don't think you want to classify drones differently,” he explained. “If you start trying to do that, you're going to open up a can of worms … You could write language that would allow there to be an exception under very specified conditions where you can operate a UAS mitigation system legally. So, you can write language for an exception without having to change the actual language of the law that protects drones.”

Voss met this month with Congressional staff working on the issue and said he heard strong support for a counter-drone pilot program being included in any legislation. The program would likely see the federal agencies authorized to perform counter-drone activities each train and oversee a number of state and local authorities trialing UAV mitigation technologies.

For now, the FAA’s remote identification requirement for all drones operating in the National Airspace System, which went into effect last year, is seen as a step forward for helping authorities track down bad actors. But taking direct action against a drone remains illegal, a blanket ban that Congress may finally start to roll back.