Anti-Drone Technologies
A drone flies over a water tank (or a bridge, a power plant, a baseball stadium, an airport…the possibilities are endless). Even assuming that the local government agency with jurisdiction over the water tank has restricted drone flight, how is it to enforce such a restriction? An agency seeking to enforce its drone restrictions could shoot down the drone—or employ a technological solution to capture, disable, or destroy the drone. But otherwise, it is close to helpless if it cannot locate the operator of a drone. Anti-drone detection technologies offer a possible solution to this enforcement problem. Like so many legal issues regarding drone technologies, the legal landscape is unclear as to what anti-drone solutions are legal.
Airspace is a company selling interesting anti-drone technologies—including the two main methods of enforcing drone regulations—Detection and “Mitigation,” meaning capture and removal of drones. These technologies raise interesting legal issues. There are both federal and state laws on the books that, while not originally intended to apply to drones, create a difficult set of obstacles for any agency seeking to implement an anti-drone strategy.
On one end of the spectrum are mitigation methods by which a drone is controlled, disabled, or destroyed. See 1:47-2:02 of this video for a tried-and-true mitigation method involving raptors. Airspace is marketing a higher-tech mitigation technology—see this video for Airspace’s simulation. The problem with mitigation techniques is that they are almost certainly illegal.
Drones are considered a type of aircraft. Title 18 of the United States Code provides that “[w]hoever willfully sets fire to, damages, destroys, disables, or wrecks any aircraft . . . shall be fined under this title or imprisoned not more than twenty years, or both. (18 U.S.C. § 32). 18 USC 32 is not the only potential federal statutory impediment to anti-drone mitigation efforts—all of the federal prohibitions discussed below with regard to active detection, also would prohibit mitigating drone flight. Mitigation methods also present legal risks under State law, for conversion or other tort theories, that could open the door to a civil action by the drone owner whose drone was captured.
At the other end of the spectrum are detection methods. These methods, when completely passive, likely do not implicate any of the legal issues applicable to mitigation methods. For example, Airspace offers a solution that it claims integrates “sensor correlation, targeted visual display, and communication alerts” to detect drone activity. It is hard to tell from its video whether Airspace’s technology is truly passive. As soon as a detection technique involves more active efforts, legal issues start to appear. For example, pinging a drone to determine its location may be an illegal interference with satellite GPS systems in violation of 18 U.S.C. § 1367. Federal law also generally prohibits computer hacking, including intentionally accessing a computer without authorization if, by doing so, an individual obtains information from any protected computer. (see 18 U.S.C. § 1030(a)(2)(C))
Just as with the development of drones a few years ago, anti-drone technology is also developing faster than the law can keep up. Those interested in this evolving area should check out a recent FAQ from the Federal Aviation Administration concerning drone detection systems—in particular #s 5 and 6. The FAA emphasizes the risks of drones—in particular at airports. But it cautiously emphasizes that only statutorily permitted federal agencies may implement most anti-drone technologies. Local agencies are still waiting.