In 1901 New York state made a pioneering regulation move and became the first US state to require automobile owners to register their vehicles. This marked the beginning of regulation on modern traffic, which - following decades of development - resulted in a multi-layer concept of regulation relating to vehicles and driver’s licenses, traffic signs and insurance mechanisms that we are all familiar with nowadays.
While certain parallels can be drawn between the early days of cars and our contemporary experience with quadcopters, we are facing a new challenging era that is far more complex to organise and regulate.
Integrating drones in existing regulatory ecosystem
Similar to other pioneering technologies in the past, drones need to integrate into a long existing and well-balanced ecosystem, the rules of which have first been drafted some one hundred years ago and have evolved without taking vehicles such as drones into account.
Yet the safety risks related to aviation hinder the quick integration of drones into that ecosystem, broadening the gap between existing regulatory landscape and the exponentially growing popularity and ever-advancing technology of drones.
The safety risks related to aviation hinder the quick integration of drones into the legislative ecosystem
For the past several years, governments and legislators have been trying to tackle this problem by trying to answer two questions: how to properly integrate drones into the airspace without creating a hazardous impact on existing airborne operations, and how to enforce regulations in order to prevent the side-effects related to careless or malicious drone flights, taking into consideration public safety and physical security.
Counter-UAS measures and regulations
Up until 2018, legislators tried to tackle these two questions as a whole by introducing bundled legislation drafts covering the entire landscape of gaps they needed to address, which resulted in multi-parliamentary committee efforts both in the US and abroad to review and approve each bill - a process that is very slow by design.
It was only in the beginning of this year that the issues were starting to be addressed separately: legislation related to limitations and counter-drone measures on the one hand, and legislation related to integration into airspace on the other.
Let’s take a closer look at Counter-UAS (unmanned aerial systems) measures and what makes them challenging in terms of regulation. Over the past years, various counter-drone technologies have been introduced to enable control over rogue drones in order to either stop them from achieving their flight purpose or prevent them from creating safety hazards to people or property. These measures can be grouped into 3 types of technologies:
- Military grade solutions - including lasers and surface-air missiles
- Kinetic solutions - including net-guns and autonomous drones set out to catch the rogue drone and disable it airborne
- Non-kinetic RF-based solutions - aimed at either disabling, disrupting or accessing the drone’s communications channels in order to trigger a return-to-home function, or guide the drone into a safe landing route
Aside from combat military operations, the legality of using the above technologies is questionable as they tamper with an airborne aircraft, might be considered as wiretapping and/or violate computer fraud laws. Therefore, one can conclude that unless changes to regulation are made, non-military facilities will continue to be defenceless from and vulnerable to rogue drones.
One can conclude that unless changes to regulation are made, non-military facilities will continue to be defenceless from and vulnerable to rogue drones
European c-UAS legislation
Next, let’s look at the state of c-UAS legislation in both Europe and US to better understand different legislative ecosystems and how they affect the possibilities of using counter drone measures.
In the European Union, there is currently no uniform legislation, and the member countries rely on their own existing legal infrastructures. Roughly speaking, most countries use a method of exemptions to the communications and aviation laws to allow the use of counter drone measures after a close examination by the relevant authorities. Such exemptions are approved under scrutiny to particular sites, which provide some relief, but they do not allow broad use of countermeasures. Further discussion regarding a broader regulation change, on a country level or EU-wide, is only preliminary.
US c-UAS legislation
Preventing Emerging Threats - provides an initial infrastructure for counter drone measures to be used by various DoJ and DHS agenciesUnlike the EU, in the US exemptions are not possible within the existing legal framework, and the possible violation of US code title 18 means that the hands of both the government or private entities are tied when attempting to protect mass public gatherings, sports venues, or critical infrastructure. Therefore, it was more urgent to introduce legislation that would allow countermeasures to some extent.
In September, US Congress approved the FAA-reauthorisation act for the next 5 years (H.R. 302), which was shortly after signed by the President and came into effect. Division H of the act - Preventing Emerging Threats - provides an initial infrastructure for counter drone measures to be used by various DoJ (Department of Justice) and DHS (Department of Homeland Security) agencies under strict limitations.
However, the act avoids determining which technology the agencies should use, yet it requires minimal impact on privacy and overall safety in order to strike the necessary balance. This is the first profound counter-drone legislation and is expected to be followed by additional measures both in the US and in other countries.
Updating counter-drone legal infrastructure
In summary, 2018 has been a pioneering year for counter-drone legislation, and while technology already allows taking action when necessary, legal infrastructure needs further updates in order to close the existing gaps: covering additional federal assets, state-level governments, and private facilities of high importance, such as critical infrastructure sites.
Legislators in the US and around the world need to continue working in a rapid tempo to keep up with the growing threat of drones. As with cars a century ago, the number of accidents will rise with the increase in time taken to regulate.