The U.S. Department of Justice (“DOJ”) has issued guidance for the use of counter-unmanned aircraft systems (“C-UAS”) actions by federal law enforcement agencies, which are authorized by the Preventing Emerging Threats Act of 2018 (the “Act”).  The guidance establishes a process for the federal government to select facilities and assets that warrant protection with C-UAS technology, and sets forth the types of C-UAS actions that may be authorized.  UAS operators should stay apprised of these developments to ensure that their operations remain lawful and do not trigger C-UAS actions in response, and should look for opportunities to help shape C-UAS policies going forward.

Under the Act, codified at 6 U.S.C. § 124n, the U.S. Attorney General may authorize federal law enforcement agencies to take certain actions to mitigate threats posed by UAS to particular assets or facilities identified by federal law enforcement agencies.  Id. § 124n(a).   To be covered under the Act, an asset or facility must be deemed a high-risk and potential target for unlawful UAS operations, and it must directly relate to missions authorized by DOJ, the U.S. Department of Homeland Security (“DHS”), or the U.S. Coast Guard.  Id. § 124n(k)(3).

The guidance establishes a process for federal law enforcement agencies to request that a facility or asset be covered under the Act.  This process includes a risk-based assessment of the potential threat posed by UAS, and the potential impacts of protective measures on public safety.  Agencies are instructed to coordinate such requests with the FAA to ensure that proposed protective measures do not pose an unacceptable degree of risk to the safety, efficiency, or use of the national airspace system.

The “protective measures” authorized by the guidance include monitoring and tracking UAS, warning the UAS operator, disrupting control of the UAS, seizing control of or confiscating the UAS, and using reasonable force, if necessary, to disable, damage, or destroy the UAS.  Federal agencies that obtain equipment or technology used to take protective measures are required to consider ways to minimize the potential harm to bystanders, among other things, and are required to undergo training for using the equipment or technology.

According to a DOJ press release, the guidance is the product of collaboration between DOJ, DOT, and FAA.  Attorney General William Barr stated that the guidance will help ensure that the U.S. Government is positioned to address new threats from UAS operations and can conduct C-UAS efforts safely and responsibly. DOJ’s guidance shows that the federal government is preparing for new challenges as the role of UAS technology in society grows.  Drone operators should closely monitor the federal government’s implementation of this guidance to avoid operating near covered facilities or assets and becoming subject to C-UAS actions.  C-UAS technology manufacturers should ensure that their technology meets the federal government’s standards and can safeguard the public while minimizing the risk of harm to bystanders.