The Trump administration is introducing legislation that would allow the Department of Homeland Security and the Department of Justice to intercept drones that pose a threat “to the safety or security of a covered facility or asset.”  The legislation is necessary because intercepting a drone would involve interfering with electronic communications in violation of the Electronic Communications Privacy Act (18 U.S.C. § 2510 et seq.).  However, the scope of the proposed legislation appears to be very broad, giving the government wide discretion in identifying a threat, leading to privacy and even First Amendment concerns.

The goal of the legislation is pretty straightforward.  As drones become cheaper and easier to obtain, the potential for someone to use one in a dangerous manner only increases.  To safeguard potential targets, whether it be infrastructure or individuals, federal law enforcement need a way to combat a potential threat.  According to the proposal, this legislation would allow the government to:

1. “detect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent…”;
2. “warn the operator of the unmanned aircraft system…”;
3. “disrupt control of the unmanned aircraft system…”;
4. “seize or exercise control of the unmanned aircraft system…”;
5. “seize or otherwise confiscate the unmanned aircraft system…”; and
6. “use reasonable force to disable, damage, or destroy the unmanned aircraft system…”;

In addressing privacy concerns, the legislation merely states that any interception or acquisition of an unmanned aircraft system shall be “conducted in a manner consistent with the fourth amendment to the Constitution and applicable provisions of Federal law…” but it is unclear how that would work in practice.   Likewise, the proposal states that communications may only be intercepted “to the extent necessary to support a function of the Department of Homeland Security or the Department of Justice.”

While everyone can appreciate the need for safety in the face of a new technology, the broad authority granted by this legislation could raise questions for responsible drone pilots.  It is likely that the types of facilities and buildings will need to be more narrowly defined.

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