How the Justice Department is Permitted to Use Counter-Drone Technology

Attorney General William Barr recently released guidance to steer the Justice Department and its component agencies’ use of protective counter-drone actions and technologies against unmanned aircraft systems that threaten its facilities and assets—or the nation’s security.

Sparked by Congress in 2018 and developed in coordination with the Transportation Department and the Federal Aviation Administration, the 22-page document provides the department’s entities with jurisdiction to intercept, disrupt, damage and, in certain cases, destroy unmanned, remotely piloted aircraft or systems that pose significant hazards. 

“It will ensure that we are positioned for the future to address this new threat, and that we approach our counter-drone efforts responsibly, with full respect for the Constitution, privacy, and the safety of the national airspace,” Barr said in a mid-April announcement accompanying the release. The agency’s Deputy Attorney General Jeffrey Rosen also pointed to the provisions’ timeliness in the statement, noting that “the number of unmanned aircraft is increasing rapidly, as is their importance to the economy.”

Experts forecast the global drone services market will grow from $4.4 billion in 2018 to $63.6 billion by 2025. Chief Technology Officer and co-founder of counter-UAS solutions provider Fortem Technologies Adam Robertson told Nextgov Wednesday that with the increase of consumer and commercial drones, “the ability for all levels of agencies to respond to clueless or careless drone operators, or criminal/terrorist attacks using drones is an imminent need.” The Defense Innovation Unit recently tapped Fortem’s SkyDome anti-drone system to address UAS threats midair. Currently serving as a representative in the Utah House of Representatives, Robertson welcomed the guidance but also emphasized the increasing need for federal agency officials to work with local authorities who might need to implement their own counter-drone security measures. 

Passed in 2018, the Preventing Emerging Threats Act legally authorized both the Justice and the Homeland Security departments to track and mitigate drone and UAS-system-centered threats and directed the formal guidance. Justice’s document applies solely to officials across seven of the department’s components: the Bureau of Alcohol, Tobacco, Firearms, and Explosives; the Drug Enforcement Administration; the FBI; the Federal Bureau of Prisons; the U.S. Marshals Service; the Justice Management Division; and the Executive Office for U.S. Attorneys. Barr also instructs all of them to develop their own component-level guidance and policies.

Though the heads of these covered organizations may opt to pursue actions against danger-posing drones without Justice’s consent in “exceptional circumstances,” they are generally expected to “seek approval for the use of counter-drone technologies and request designation of facilities or assets for protection,” according to the guidance. “As a general rule, not every facility or asset will qualify for protection,” it states. “Only those considered ‘high risk and a potential target’ for drone activity—and relate to one of the authorized DOJ missions enumerated in the act and the guidance—will qualify.” 

Under the attorney general’s guidance, Justice’s facilities or assets may include grounds operated by the agency, a conveyance or “vehicle transporting a witness” the FBI or other component is protecting, or “the location of an active federal law enforcement investigation, emergency response, or security function.” It also incorporates the protection of National Special Security Events, such as the Super Bowl or presidential inaugurations, among a variety of others.

“[Barr’s] description of which facilities are covered is currently ambiguous and could apply to things outside of the domain of the [department]. This is an example of why Fortem believes the government should continue giving authority to individual states to let them decide,” Robertson explained. “Traditionally, these facilities are thought to include the likes of prisons and borders but remain up to interpretation and need further clarification.”

In the document, Barr offers a list of “protective measures” the entities may pursue once approved against “credible threats,” which include drones or systems that, if unabated, may conduct unauthorized surveillance, harm individuals or damage certain properties, facilitate unlawful acts and more. The protective measures involve actions such as “seizing” control or “confiscating” the targets, hacking into their communication systems without permission, or using “reasonable force” to destroy the drones. Though Congress and the government have not explicitly authorized state and local authorities to unleash counter-drone technology, the guidance enables Justice components to submit requests to deploy protective measures in support of state, local, territorial or tribal law enforcement.

Still, Robertson said some circumstances warrant the need for local agencies to have their own counter-drone authorities without waiting for federal approval or intervention. “In the case of a drone operator flying over a local stadium, for example, hundreds of lives could be at risk while officials lost valuable minutes waiting for the ‘appropriate’ federal authorities to address the threat,” he said.

As Barr noted on the front end, the guidance also includes several privacy protections. In some cases, for instance, officials may intercept communications from risky drones, but they can only retain the records and contents for up to 180 days. Further, it also lays out the considerations Justice organizations should make ahead of acquiring the technology. Officials are encouraged to consider systems that “minimize the risks” of harm to bystanders and the national airspace, as well as those that meet the agency’s cybersecurity requirements. 

“Government officials and military experts agree that a drone threat to the U.S. is not a matter of ‘if,’ but ‘when’—so we’re encouraged to see the [department and attorney general] start to take action and develop a strategy for how to handle these threats before we’re caught flat-footed,” Robertson said.