Lasers, Jammers, Nets, and Eagles: Drone Defense Is Still Illegal

Unmanned aircraft system (“UAS”) technology is advancing rapidly as entry costs continue to plummet, creating an extremely low barrier to entry for those who would use them for good or ill. Consumer off-the-shelf drones equipped with very basic modifications are mission-capable for a wide variety of malicious disruptions, diversions, or attacks. A civilian counter-drone industry is developing to address this threat, but it is hampered in the United States by a simple reality: nearly every means available to defend against a drone-borne attack is illegal on multiple, independent grounds. Some have already deployed this technology on an “ask forgiveness, not permission” basis, hoping that they will be pardoned for breaking these laws if they are ever forced to deploy their systems to avert a crisis. This Wild West approach to counter-unmanned aircraft systems (“C-UAS”) will inevitably produce a sub-optimal result. This article first offers a categorical taxonomy of the C-UAS currently in production and some of the most plausible systems in development. Second, it analyzes the legality of each category, and shows that deploying any of them as a civilian operator would incur potential civil and criminal liability. Third, it will examine some of the recent statutory and regulatory efforts to jump-start this industry, but demonstrate that these efforts fall short of remedying the numerous statutory barriers to legal counter-drone system deployment. Finally, it will offer several potential solutions to this problem, and principles that should guide whichever of those paths federal regulators opt to take. By proactively legalizing limited and responsible C-UAS use, we may yet avoid a crisis and its inevitable backlash.