Attorney General Charts Course for Doj Counter-drone Protection

• Jurisdiction: United States,Federal
• Publication year: 2020
• Citation: Vol. 3 No. 5

James J. Quinlan and Elaine D. Solomon^*

The authors discuss how federal law enforcement agencies are permitted to "police" the skies with respect to counter-drone measures.

Continuing increased capabilities and technological advancements of unmanned aircraft systems ("UAS")/drones make them increasingly dangerous in the hands of negligent and reckless operators, and a more serious threat if under the control of criminals and terrorists. Relevant 2018 legislation permitting federal law enforcement to conduct counter-drone activities gained traction recently through detailed guidance provided by Attorney General William Barr.

This article explains how federal law enforcement agencies are permitted to "police" the friendly skies with respect to counter-drone measures. Individuals and companies with operations affected by the unmanned aircraft industry should be aware of these newly promulgated rules regarding counter-drone measures, including processes available for federal law enforcement's procurement of training and technology regarding counter-drone measures.

AG Barr's Drone Memo

In 2018, Congress passed the Preventing Emerging Threat Act (the "Act").¹ The Act provided U.S. Department of Justice ("DOJ") and Department of Homeland Security components with authority to take certain counter-unmanned aircraft systems ("C-UAS") actions or counter-drone actions, irrespective of other federal regulations which could otherwise limit such actions, to protect designated facilities and assets from credible drone threats, including destroying the threatening drone in flight.

However, with respect to the DOJ, empowered "components" or agencies such as the Federal Bureau of Investigation ("FBI"), the Drug Enforcement Agency ("DEA"), the Bureau of Alcohol, Tobacco and Firearms ("ATF"), and the U.S. Marshal Service could not utilize that Congressional authority without guidance from the Attorney General. That guidance has now been issued.

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On April 13, 2020, Attorney General William P. Barr issued a memorandum titled "Guidance to Department of Justice components regarding counter-unmanned aircraft systems (C-UAS) actions authorized under the Preventing Emerging Threats Act of 2018" (the "Guidance"). The memorandum provides guidance as to how federal agencies can monitor and, if necessary, destroy drones threatening U.S. safety and security.

Aim for Guidance: Collaboration, Safety, Privacy

According to Attorney General Barr, the Guidance was the "product of extensive collaboration between the Department of Justice, the Department of Transportation, and the FAA," which he said, "will ensure that we are positioned for the...