Does effectively shooting down a unmanned aerial system (UAS) equate to a public safety necessity, or is it destruction of personal property that also translates to a violation of Federal Aviation Administration (FAA) regulations? The short answer is: It depends.
During a panel about drone rights, privacy and security held Feb. 15 at the 2017 RSA conference, experts from law enforcement, the federal courts and industry discussed the gray area that surrounds drone operation in the United States.
One of the overarching issues in the UAS space is that of who has enforcement authority. While many would agree the FAA has staked a substantial claim in making the rules, the lines blur considerably when context is added around specific cases.
The FBI and other law enforcement agencies have taken to working groups to plot out where specific authority lies in this area, according to Erin Joe, section chief with the Federal Bureau of Investigation (FBI).
“Everybody is looking at their own authorities right now,” she said. “We are really trying to say, ‘What do we bring to the table…”
These efforts boil down to how to prevent malicious or unsanctioned uses, or how to respond to emergency situations. In cases where emergency action needs to be taken against a UAS because of a potential public threat, Joe said many agencies, including the FAA, would potentially play a role.
Methods for determining the cases where agencies can make corrective decisions, or might need a warrant, have yet to be ironed out completely.
U.S. Magistrate Judge Andrew Peck acknowledged what he called “huge legal gaps” at the federal level that have resulted in a “hodgepodge” of state and local rules that could pose potential legal conflicts down the way.
“Eventually, I think, it would be helpful if there was comprehensive federal regulation in this area," he said, "but we are nowhere near there at the moment."
And the popularity of the technology hasn’t made the situation any easier, or safer, according to the expert panel. In France and the United States, multiple drone intrusions into high-security nuclear facilities has been documented on a number of occasions in recent history.
In 2015, a drone touched down on the White House lawn, and cases of drones delivering contraband to prisons have also been well documented.
Part of the problem with determining what action to take, or who should take that action, hinges heavily on the intent of the vehicle and its pilot, said Joe. “A lot of that depends on the capabilities of the drones that we are looking at, and it also depends on the environment and locale of where these drones are being flown.”
In the case of the White House intrusion, the section chief said jurisdiction is cut and dry, and clearly falls to the U.S. Secret Service. The ability to regulate and take control of the airspace makes it a much different case study from more populated, softer locations, like malls or other large events.
“In the White House example, though it certainly causes us to get a little bit concerned when we hear about a drone at the White House, it’s still a contained environment with the ability to respond in some way.”
The problem comes for law enforcement when identifying and mitigating potential threats in less controlled environments.
“There are several concerns, both from a safety perspective as well as from a legal perspective, on how are we going to interact with that drone. How do we stop the event from happening, whatever it is, in a safe manner, a way that doesn’t cause greater danger, and then likewise how do we do it without interfering with federal regulations ourselves, because it is a federal violation to interfere with an aircraft.”
Industry panelist Serge Jorgensen, chief technology officer at Sylint Group, said the old concepts of territory and personal space have changed, and will ultimately require more conversation and regulation.
Simply shooting down the devices isn’t always the best answer for law enforcement or the public, according to Peck. There are several implications that come along with destroying or interfering with a UAS. “Anytime one destroys someone else’s property," Peck said, "there is a risk that that is a tort that can be remedied.”
Drones have also posed substantial disruption to the larger privacy conversation and blurred the lines of demarcation. Peck pointed to a number of cases that pitted law enforcement against a suspect, and drones have complicated the conversation because of there newness in the public and law enforcement arenas.
Cases involving wiretapping, GPS tracking and aerial surveillance can be compiled to make the argument for or against certain UAS uses, but much of the precedent in the drone space remains to be solidified.
