Does the government really need this much power to deal with an of the drones?

By India McKinney and Andrew Crocker

Last week, the Senate Homeland and Governmental Committee held a hearing on the Preventing Emerging Threats Act of 2018 (S. ), which would give DOJ and DHS sweeping new authority to counter drones. Among other things, the bill would authorize DOJ and DHS to “track,” “disrupt,” “,” “seize or otherwise confiscate,” or even “destroy” unmanned aircraft that pose a “threat” to certain facilities or areas in the U.S. Given the breadth of these proposed new powers, you would expect officials to have a strong case for passing the bill. But even after the hearing, it’s not clear why DHS and DOJ need any expanded authority to go after “malicious” drones.

Last week, the Senate Homeland Security and Governmental Affairs Committee held a hearing on the Preventing Emerging Threats Act of 2018 (S. 2836), which would give the Department of Justice and the Department of Homeland Security sweeping new authority to counter malicious drones. Officials from both those agencies as well as the Federal Aviation Administration were present to discuss the government’s current response to drones, and how it would like to be able to respond. Interestingly, both the Senators and the witnesses seem to agree that there are some large, unresolved constitutional questions in this bill. In light of those questions, EFF strongly opposes this bill. 

Among other things, the bill would authorize DOJ and DHS to “track,” “disrupt,” “control,” “seize or otherwise confiscate,” or even “destroy” unmanned aircraft that pose a “threat” to certain facilities or areas in the U.S. The bill also authorizes the government to “intercept” or acquire communications around the drone for these purposes, which could be read to include capturing video footage sent from the drone. Most concerning, many of the bill’s key terms are undefined, but it is clear that it provides extremely broad authority, exempting officials from following procedures that ordinarily govern electronic surveillance and hacking, such as the Wiretap Act, Electronic Communications Privacy Act, and the Fraud and Abuse Act.

Given the breadth of these proposed new powers, you would expect officials to have a strong case for passing the bill. But even after the hearing, it’s not clear why DHS and DOJ need any expanded authority to go after “malicious” drones. For example, the FAA already has the ability to impose public flight restrictions for non-military aircraft, including drones. S. 2836 would expand those restrictions to any “covered facility or asset,” but does not narrowly define what is covered. Instead, the Secretary of Homeland Security or the Attorney General can make that determination, on their own, without public input and without public notice. While Committee chairman Ron Johnson claimed that the new authority would not give DHS the authority to “knock down drones flying around your backyard,” that’s not exactly true.



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