Counter-UAS Authority Expires Amid Government Shutdown

Congress fails to reauthorize DOJ, DHS counter-UAS power

By DRONELIFE Features Editor Jim Magill

The federal government’s ability to disable and take down drones posing a potential threat to critical infrastructure such as power plants and airports ended at midnight, September 30, a victim of the legislative impasse that also has led to the wider federal government shutdown.

Under the federal FAA Reauthorization Act of 2018, the Departments of Justice and Homeland Security were given the authority to conduct counter-UAS measures. Those authorities were set to expire within five years, unless Congress re-authorized them.

Last December, the Senate passed the Counter-UAS Authority Extension Act to extend through the end of September the authority for DHS and DOJ to detect, track and disable drones that posed a credible threat to airports, critical infrastructure and other sensitive sites. However, Congress failed to pass another temporary extension, which had been included in the stop-gap funding bill, which congressional Republicans had proposed to avoid a government shutdown.

In a statement, the Association for Uncrewed Vehicle Systems International (AUVSI) decried lawmakers’ failure to reauthorize the government agencies’ counter-UAS authorities, saying it increases the risks posed by drones operated by malicious actors.

“With the expiration of federal counter-UAS authorities on October 1, the Departments of Justice and Homeland Security no longer have the legal authority to mitigate drone threats near airports, federal facilities and major events,” the AUVSI statement says.

“This lapse, caused by Congress’s failure to extend the authorities before the government shutdown, could leave critical infrastructure more vulnerable at a time when the risks posed by careless or malicious drone use continue to grow.”

In a statement, the DOJ emphasized that the lack of action on the part of the Congress did not impair federal agencies’ ability to detect drones that might pose a threat.

“This Department of Justice stands ready to combat any threats posed by unmanned aircraft systems, or drones,” it said. “The DOJ, and its law enforcement components, including FBI, Marshals, and Bureau of Prisons, retain detection(emphasis added) capabilities and are prepared to work with state and local partners to investigate and prosecute any drone-related crimes.”

Ironically, the failure to reauthorize federal agencies’ ability to proactively mitigate potential drone threats comes at a time of unusual bipartisan agreement in Congress on the need to come up with more robust measures to deal with the increasing potential for drones to be used to cause harm. In addition, there have been widespread calls from state and local government entities and association, as well as law enforcement groups to extend drone mitigation authority beyond just a handful of federal departments to state and municipal public safety agencies.

In August, a coalition of 16 law enforcement and corrections agencies sent an open letter to Congress asking lawmakers to give state and large municipal police agencies the authority to conduct counter-UAS operations, including bringing down drones electronically. Then in September, the National Governors Association sent its own letter to congressional leaders asking for legislation to give states greater counter-UAS authorities.

“We urge Congress to enact legislation that strengthens and clarifies the coordination between federal and state authorities, enhancing states’ capacity to detect and mitigate UAS threats while recognizing our inherent duty to protect our citizens and vital infrastructure,” the NGA letter states. “Further, we urge Congress to legislatively grant states explicit legal authority, similar to that of the federal government, to detect and mitigate UAS threats.”

In its statement, AUVSI implied that Congress’s failure to reauthorize federal counter-UAS authority stems from lawmakers’ habit of kicking the can down the road when it comes to establishing policies to deal with the potential threats that drones can pose.

“The situation highlights the urgent need for Congress to move beyond temporary stopgap measures and establish a long-term, stable policy framework that empowers federal, state and local agencies to address these threats while ensuring the safe, responsible integration of commercial and public safety drone operations,” AUVSI said.