Legal Challenges Facing Civilian Counter-UAV Systems
Legal Challenges Facing Civilian Counter-UAV Systems
Consumer/commercial unmanned aerial vehicles (UAV) sales and operations are increasing rapidly according to sales figures, media reports, and various studies. So too are unconventional uses of these drones by non-state actors and criminals, as well as perceived privacy violations by regular operators. The result is a well funded rush to develop UAV detection and counter measure systems for military and civilian use. At present, someone employing a counter-UAV system may be engaged in more serious criminal activity than the operator of the UAV. If the legal challenges affecting the deployment of these systems are not addressed, not only will those investments be put at risk but our nation may be exposed to greater risk of malicious UAV operators.
The technical challenges and efficiency of the solutions are often shrouded behind intellectual property protection at various startup companies. The legal challenges, however, are clearly defined in existing public law and regulation. We all have a vested interest in working with local, state, and federal lawmakers to enact new regulations that will enable individuals, corporations, and law enforcement agencies to effectively and legally defend against malicious UAVs.
For the purposes of this article we will define an Unconventional Small Unmanned Aerial System (UsUAS) as a UAV plus support ground control systems with the following characteristics:
- Military Group 1 UAV (0-20 lbs maximum weight, less than 1200 ft AGL operating altitude, less than 100 knots)
- Available to civilians without a license or other documentation
- Priced below $5,000
- Operated by terrorist, criminal, or malicious actors
Detection, Determination, and Response
Short of establishing a hard physical, electronic, or radio frequency barrier around an installation, anyone wishing to defend a site against a UsUAS must go through three stages – detection, classification, and neutralization. Once detected, the malicious nature of the operation must be determined before moving on to deterrence measures. The mere presence of a UAV in civilian airspace does not define malicious behavior. Finally, even if a UAV is detected and classified as malicious the legal response options are almost exclusively limited to after the fact administrative, civil, or criminal charges.
In the United States there are very few areas where aircraft crossing a perimeter may automatically be treated as hostile or at least malicious. A declared National Defense Airspace as was used for the 2017 Presidential Inauguration is the most recent example.[i] In addition to civil and criminal charges, “the United States government may use deadly force against the airborne aircraft, if it is determined that the aircraft poses an imminent security threat.” These are the only areas within the United States borders where deadly force is authorized against aircraft, which includes UsUASs. Recent incursions into the airspace over the White House by UsUASs[ii] and by small aircraft[iii] illuminate both the difficulty of detecting incursions by these types of aircraft and the perceived unwillingness to engage them even over the most critical building in the United States.
Temporary Flight Restrictions (TFRs) issued by the FAA provides for temporary control of the airspace by other agencies and allows them to administratively control access to the airspace. Access violations are addressed through civil and criminal charges, if the operator can be located. Deadly force is not authorized under the Federal Aviation Regulations or their underlying statutes.
For several years agencies fighting wildfires in the western part of the United States have engaged in an ongoing dance with UAV operators who violate the TFRs established to enable aviation assets to safely operate near the wildfires. “Twenty-one drones were spotted at the scenes of wildfires nationwide in 2014-2015, and aircraft were grounded six times. And there have been at least two occasions when firefighting aircraft have had to take evasive actions to avert a collision with drones.”[iv] Few operators have been detected or charged. One operator was charged with a misdemeanor for interfering with firefighting operations and fined $1,000. California failed to pass a more strict law with harsher punishments.
The legal opportunities to challenge UsUAS operations over most federal lands open to the public as well as private or commercial property are even more limited. The debate hinges around two core issues: Who controls the airspace and privacy.
It is generally accepted that the Federal Aviation Administration controls all of the National Airspace (NAS). Many jurisdictions are attempting to write laws that depend on their ability to regulate local airspace, something they have no legal authority to do. Orlando, FL recently crafted an ordinance that may be more successful in defending against challenges by addressing the use of city land rather than the airspace. “It is prohibited to cause an unmanned aircraft to launch or land, or for any person to operate or assist in the operation of any unmanned aircraft system out of doors unless permitted to do so by the City of Orlando, when that person is on city property.”[v]
The vast majority of citizens in the United States desire to be free from surveillance by the government and by other citizens. Unfortunately, there are essentially no laws that protect an individual’s privacy outside of the walls of their homes. Any effective law would need to apply to all forms of aerial surveillance including helicopters, airplanes, and satellites. UAVs reignited and fueled debate and possible regulations addressing privacy protection from aerial surveillance but there are no broad laws in place that provide for civil or criminal redress, and particularly no laws that provide for shooting, netting, jamming, or hacking into an UsUAS.
Counter-USUAS Options
Non-military UAVs are susceptible to a variety of attacks that may disable them in flight, cause them to return to the launch point, or grant the attacker control over their operation. Methods range from shotguns to GPS jammers to nets and even to birds. Unfortunately, utilizing any of these methods in most domestic situations is illegal.
We will give examples of each type of attack, the operator’s ability to counter the attack, and examples of laws that any attacker could be charged with violating.
The following legal options for charging the person attacking the UsUAS will be used for each type of attack. In addition to these criminal charges, a variety of civil charges could be filed.
State criminal offenses
- Larceny – The unlawful taking and carrying away of someone else’s property without the consent of the owner; and with the intent to permanently deprive the owner of the property.[vi] (state or local)
- Criminal mischief – Intentionally or knowingly damaging someone else’s property (state or local)
- Reckless endangerment – Carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people’s rights to safety (state or local)
Federal criminal offenses
- Destruction of aircraft – Sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce. (18 U.S. Code § 32)
- Jamming – The use of devices designed to intentionally block, jam, or interfere with authorized radio communications is a violation of federal law.[vii] (The Communications Act of 1934, 18 U.S.C. § 1362, 18 U.S.C. § 1367(a))
- FCC Violation – Operating an unlicensed transmitter or interfering with the legal operation of another transmitter. (The Communications Act of 1934, Sections 301 and 333)
- CFAA – “Knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer” (Computer Fraud and Abuse Act, 18 U.S.C. § 1030)
Any attack that causes the aircraft to stop operating in a normal manner opens the attacker up to being charged with criminal mischief if the UAV or property on the ground is damaged as a result. Any attack that causes the aircraft to cease operating will add opportunities to charge the attacker with robbery, reckless endangerment, and destruction of aircraft due to the likelihood that the aircraft will strike the ground in an uncontrolled manner. Any attack using a transmitter to jam or access the control or data links on the aircraft will expose the attacker to being charged with FCC violations. Any attack using a transmitter to jam GPS signals, command links or data links will expose the attacker to all of the above.
Some attacks, and specifically GPS jamming attacks, have the potential to create safety risks far beyond the offending aircraft and could result in significant charges. Discharging a firearm against an offending aircraft could result in injury or death to individuals other than the operator and is almost always a crime. Deadly physical force may only be legally used against deadly physical force.
Physical/Kinetic
A physical attack on a UsUAS is intended to cause the aircraft to cease operating. Example attacks include firearms, nets, and birds.
The UsUAS operator can attempt to counter such an attack by flying erratically, either manually or via an automated flight path. Other defenses would require modifications to the aircraft that would likely be out of proportion to its value.
A successful attack will cause the aircraft to fall to earth in an uncontrolled manner. The person conducting such an attack could be charged with larceny, criminal mischief, reckless endangerment, and destruction of aircraft.
Jamming
Most commercial UAVs can be configured to “fail safe” in the event of unexpected loss of signal or interference. An attacker can jam the GPS signal, causing the UsUAS to lose one of the guidance options. This normally results in erratic behavior. A very careful GPS attack could force a UsUAS to land. An attacker can also jam either the control link used to operate the aircraft or the data link used to receive sensor data from the aircraft or both. Jamming the control link will result in a normally configured UAV to return to home and land.
A malicious operator can acquire a UAV capable of operating without a GPS signal or manually fly a standard UAV that has lost the GPS signal. This capability exists to allow indoor and other obstructed operations. The operator can disable the “return to home” function in the event of a control link loss and enable the UAV to continue operating in an autonomous mode.
The person conducting such attacks could be charged with larceny, criminal mischief, reckless endangerment, and destruction of aircraft depending on the outcome. The person could be charged a FCC violation for operating an illegal transmitter as well as a FCC violation for jamming.
Hacking
Most commercial UAVs depend on a radio frequency communication link to enable the operator to control the aircraft either directly or through a ground control station that enables semi-autonomous flight. This communication link is poorly secured in most cases and exploits are available for all major commercial UAVs. A defender can detect the frequencies in use and send signals on those frequencies to take control of the aircraft from the original operator. The defender will then attempt to land the aircraft either to terminate the operation or to seize physical control of it.
It is difficult to configure most off the shelf commercial UAVs to operate without any control link. However, there are some off the shelf UAVs equipped with flight controllers that can easily be configured to shut down the radio link and then operate in a fully autonomous mode. Once configured in this manner, the UsUAS is impervious to such attacks. It is also possible to utilize non-standard radio link systems or cellular network links to control the aircraft and thus prevent an attack on the control link. Such a configuration would still be detectable through radio frequency scans and possibly susceptible to jamming attacks.
The person conducting such attacks could be charged with larceny, criminal mischief, reckless endangerment, and destruction of aircraft depending on the outcome. The person could be charged with a FCC violation for operating an illegal transmitter as well as a FCC violation for jamming. And, in addition to all of the above, the person conducting the attack is now remotely accessing a computer system without permission, a violation of the Computer Fraud and Abuse Act.
Summary
Technical issues aside, there is insufficient broad legal support to enable a defender to determine that the behavior of a commercial UAV is malicious and thus subject to actions to cease such operations or charge the operator. Further, existing and frequently applied local, state, and Federal laws make almost all of the options available to counter malicious UAV operations illegal. These laws apply to civilians and law enforcement alike, and either group would require exemptions to deploy any of the known counter-UAV systems.
We must face the fact that there are very limited circumstances where physical force or electronic countermeasures are authorized against aircraft, including UsUASs. In all other circumstances, the legal options for defending against a UsUAS are all after the fact measures that require identifying and locating the operator. These are not significant barriers against non-state terrorists and criminal actors.
Our investment in counter-UAV technology should be matched with investment in updated laws and regulations to enable the deployment of these systems by organizations charged with defending our infrastructure and airspace. Failure to do so may put the public at risk. Failure to do so may also result in reactionary regulations passed immediately after a malicious event that would negatively impact an industry already challenged by overly burdensome regulations.
Endnotes
[i] “FLIGHT ADVISORY NATIONAL SPECIAL SECURITY EVENT 2017 PRESIDENTIAL INAUGURATION FESTIVITIES” (Federal Aviation Administration, December 2016), https://www.faasafety.gov/files/notices/2016/Dec/2017_Inauguration_Advisory.pdf.
[ii] Michael S. Schmidt and Michael D. Shear, “A Drone, Too Small for Radar to Detect, Rattles the White House,” The New York Times, January 26, 2015, https://www.nytimes.com/2015/01/27/us/white-house-drone.html.
[iii] “Florida Mailman Lands a Gyrocopter on Capitol Lawn, Hoping to Send a Message,” Washington Post, accessed January 30, 2017, https://www.washingtonpost.com/local/florida-mailman-lands-a-gyrocopter-on-capitol-lawn-hoping-to-a-send-message/2015/04/15/3be11140-e39a-11e4-b510-962fcfabc310_story.html.
[iv] Jeff Daniels, “Feds Turn up the Heat in Fight against Drones Interfering in Wildfires,” CNBC, July 26, 2016, http://www.cnbc.com/2016/07/26/feds-turn-up-the-heat-in-the-fight-against-drones-interfering-in-wildfires.html.
[v] “ORDINANCE NO. 2016-87” (The City Council of Orlando, Florida, December 7, 2016), http://www.mynews13.com/content/dam/news/images/2017/01/4/Drone_UAS_Ordinance_-_12_7_2016.pdf.
[vi] “Definition of Larceny.” Findlaw. Accessed February 09, 2017. http://criminal.findlaw.com/criminal-charges/definition-of-larceny.html.
[vii] “Jammer Enforcement,” Federal Communications Commission, March 3, 2011, https://www.fcc.gov/general/jammer-enforcement.
UAVs, IoT, and Cybersecurity
I presented a talk on UAVs, IoT, and Cybersecurity at the LISA conference in Boston on December 7th, 2016. The abstract for the talk was:
“Small Unmanned Aerial Systems (sUAS) aka “drones” are all the rage—$500 UAVs are used in professional racing leagues and major corporations are building $100,000 UAVs to deliver packages and Internet connectivity. UAVs are slowly working their way into almost every commercial sector via operations, sales, manufacturing, or design.
sUAS—emphasis on the final “S”—are complex systems. The aerial platform alone often consists of a radio link, an autopilot, a photography sub-system, a GPS, and multiple other sensors. Each one of these components represents a cybersecurity risk unto itself and also when part of the larger system. Add in the ground control stations, the radio controller, and the video downlink system and you have a very complex computing environment running a variety of commercial, closed source, open source, and home brew software.
And yes, there is already malware specifically targeting drones.
During this presentation, we will walk through a typical operational workflow for a UAV, all of the components of a representative system, and through a possible risk assessment model for UAVs. Even if you are not working with UAVs, you should consider that UAVs are an instance of “the Internet of Things”—a collection of sensors and computing devices connected to each other and to the cloud designed to gather, distribute, and analyze data in a semi- or fully-autonomous manner.”
The slides may be found here: https://www.usenix.org/conference/lisa16/conference-program/presentation/kovar
UAV (drone) forensic analysis presentation available on YouTube
DJI Phantom 3 Log Analysis Tool
Rowland Johnson developed an excellent tool, DatCon, for analyzing DJI Phantom 3 log files in Java. I arranged to have it ported to Python because I am far more adept with Python and wanted something that I could extend to support newer file formats and potentially other UAVs.
The result can be found here:
https://github.com/dkovar/uav-log-analysis
It is my hope that others will build on this, adding support for other DJI products as well as adding visualization capabilities.
Feedback, suggestions, etc are always welcome.
UAV Forensics – version 2
Working with Greg Dominguez and Cindy Murphy, we updated my UAV Forensics presentation from last year to address the Phantom P3, it’s additional data sources, some new tools for analyzing data, and our first pass at JTAG analysis.
Greg and I gave the presentation at Techno Security in June and a PDF version is attached here: UAV Forensics -TS16-final distribution
Public Agency Operations and Part 107
After consulting with a UAV lawyer and an FAA representative, I believe that:
- Public Agencies (PAs) still have to operate under a COA
- PAs can also operate non-Public Agency Operations (PAOs) under Part 107.
See pages 61-68 of the Rule for details
If a PA wishes to examine the roof of the court house for hail damage, a Part 107 operator working for the PA can perform the task.
If a PA wishes to conduct a SAR mission, or fly a UAV in support of fire fighting operations, they need a COA or to contract with a 333 exempt operator with the appropriate COA.
FAA Position on Contracted UAS Operations by Public Agencies
[The following was written in my role as the Advocacy Director for the National Association of Search and Rescue. A PDF version is available here – Public Agency SUAS-final.]
This is an interpretation of information in the Advisory Circular 00-1.1A “Public Aircraft Operations” and refers to Title 14 of the Code of Federal Regulations (14 CFR); and Title 49 U.S.C. §§ 40102(a)(41) and 40125.
Public agencies and civil operators are encouraged to retain their own attorney to review this interpretation.
After consultation with a UAV lawyer and their FAA consultant, we believe that civil aircraft operators may fly UAVs in support of government entities (public agencies) if the following conditions are met:
- The public agency has a COA
- A contract exists between the public agency and the civil aircraft operator
- A one time declaration is filed with the FAA by the public agency
- The mission(s) flown are purely public service
- The public agency makes a determination before each mission that the mission is public serving
If these conditions are met, any civil operator regardless of certifications may operate a UAV in support of the public entity under the requirements set forth by the public entity and its COA.
CAUTIONARY NOTE: The civil operator is not required to have a 333, or to have passed the certification described in (proposed) Part 107 in these circumstances. However, the agency can and should require a 333 or the certification described in Part 107, as a requirement of the contract with the civil operator.”
It is extremely important to note that:
- The public agency must have a COA.
- This is transferring almost all risk, responsibility, and liability for certification, experience, training, etc. from the FAA to the public agency.
- There must be a contract in place between the public agency and the civil operator (it is recommended that the contract include a requirement for the civil operator to hold a 333 or part 107)
- The declaration names a specific government official and contract that covers the relationship
It is of vital importance that the public agency maintains control of the operator of the UAV and of the missions. The liability completely falls on the public agency. There is great risk if an agency enters into this relationship without a complete understanding of the risks associated with it.
This is spelled out in more detail in Advisory Circular 00-1.1A “Public Aircraft Operations” and refers to Title 14 of the Code of Federal Regulations (14 CFR); and Title 49 U.S.C. §§ 40102(a)(41) and 40125.
[An FAA presentation on this topic is available here – FAA Public Aircraft Presentation.]
ASTM Efforts on Small UAS
Quoting from a widely distributed email. I work on one UAS ASTM effort to type Small UAS. Here are their other efforts. Of particular interest is F2908 “Specification for Aircraft Flight Manual (AFM) for a Small Unmanned Aircraft System (sUAS).”
Small UAS Operations
ASTM International Committee F38 on Unmanned Aircraft Systems has recently approved seven new standards that cover all major facets of small unmanned aircraft systems operations, including design, construction, operation and maintenance requirements.
The following seven new ASTM standards, written for all sUAS that are permitted to operate over a defined area and in airspace defined by a nation’s governing aviation authority, have now been approved by F38:
F2908, Specification for Aircraft Flight Manual (AFM) for a Small Unmanned Aircraft System (sUAS). F2908 defines minimum requirements for the aircraft flight manual, which provides guidance to owners, mechanics, pilots, crew members, airports, regulatory officials and aircraft and component manufacturers who perform or provide oversight of sUAS flight operations.
F2909, Practice for Maintenance and Continued Airworthiness of Small Unmanned Aircraft Systems (sUAS). F2909 establishes a practice for the maintenance and continued airworthiness of sUAS. Requirements for continued airworthiness, inspections, maintenance and repairs/alterations are included.
F2910, Specification for Design and Construction of a Small Unmanned Aircraft System (sUAS). F2910 defines the design, construction and test requirements for sUAS. In addition to general requirements, F2910 covers requirements for structure, propulsion, propellers, fuel and oil systems, cooling, documentation and other key areas.
F2911, Practice for Production Acceptance of Small Unmanned Aircraft System (sUAS). F2911 defines production acceptance requirements for sUAS. Requirements covered include several aspects of production, system level production acceptance, quality assurance and documentation.
F3002, Specification for Design of the Command and Control System for Small Unmanned Aircraft Systems (sUAS). F3002 provides a consensus standard in support of an application to a nation’s governing aviation authority to operate an sUAS for commercial or public use. The standard focuses on command and control (C2) links, including a diagram of a C2 system and general requirements for C2 system components.
F3003, Specification for Quality Assurance of a Small Unmanned Aircraft System (sUAS). F3003 defines quality assurance requirements for design, manufacture and production of small unmanned aircraft systems. Guidance is given to sUAS manufacturers for the development of a quality assurance program.
F3005, Specification for Batteries for Use in Small Unmanned Aircraft Systems (sUAS). F3005 defines requirements for battery cells used in sUAS. Mechanical design and safety, and electrical design battery maintenance are primary battery-related areas that are covered.
“The introduction of these standards developed by F38 will help to provide a safe and appropriate path for near-term routine sUAS operations in airspace systems of the United States and other countries,” says Theodore Wierzbanowski, chairman F38.
Committee F38 encourages participation in its standards developing activities. “The user community for these standards is vast,” says Wierzbanowski. “Feedback on what works and what doesn’t during these early stages of sUAS operation is critical.”
F2908 is under the jurisdiction of F38.03 on Personnel Training, Qualification and Certification, and F2909 was developed by F38.02 on Flight Operations. The other five new standards are under the jurisdiction of F38.01 on Airworthiness.
To purchase ASTM standards, visit www.astm.org and search by the standard designation, or contact ASTM Customer Relations (phone: 877-909-ASTM; sales@astm.org).
CONTACT Technical Information: Theodore J. Wierzbanowski • Punta Gorda, Fla. • Phone: 626-429-8864 | ASTM Staff: Stephen Mawn • Phone: 610-832-9726
Position Papers – UAS Operations in Support of Search and Rescue
UAS, unmanned aerial systems, can play a significant role in search and rescue (SAR) operations. There are a number of hurdles to deploying these assets successfully. In my role as advocacy director for the National Association of Search and Rescue (NASAR) I’ve written position papers to address two of the hurdles:
- UAS deployment in support of SAR (and other disaster response incidents) requires professional UAS operators. At the present time, that means that all UAS operations must be performed under a valid COA either by public agencies or by Section 333 exempt operators. I wrote a paper for NASAR explaining this position and how public agencies and SAR volunteers can fly in support of SAR missions while complying with FAA policy/rules/guidelines.Here is the NASAR announcement which includes a link to the paper.
- Current FAA policy places three significant restrictions on UAS operations that make deployments extremely difficult and very ineffective:
- The operator must issue a NOTAM 72 hours before flying. (SAR is an emergency. UAS assets are extremely helpful in the early stages. Search is an emergency.)
- The operator must fly at or below 200 feet. (Imaging wide swaths of the area, operating in hilly or mountainous terrain, or establishing a communications relay with wide area coverage, requires higher altitudes.)
- The operator must not fly any closer than 500 feet to non-participating individuals or property. (Search subjects do not go missing in areas with zero population and no structures.)
To address these issues, Jason Kamdar and I wrote a proposal for a “First Responder COA (FRCOA)” to submit to the FAA. The document can be found here and the NASAR announcement about the paper and other related activity is here.
A Falling DJI Phantom Might, or Might Not, Crush Your Skull
The title is intentionally provoking. Too many public comments are similar to “A falling drone will give you a bump on the head”. In fact, there is a reasonable chance it will kill you. Which of these is actually true? We simply do not know and some formal experiments are required before claims are made either way. So my point is not really that they may kill you, rather it is that we need good data.
I’d like to thank the members of a particular Facebook group for engaging in a spirited discussion that helped me refine this post. It was far too provocative in the early draft and I am certain that it still is for some.
The theoretical analysis follows, and it ignores a lot of variables. These calculations are a starting point and represent the “worst case scenario”. With a lot of additional work, we could add other constraints and end up with a probability estimate of damage from a direct impact.
Weight of a DJI Phantom – 1242g (2.73 lbs)
Altitude at time of failure – 61m (200 feet)
Force required to crush a human skull – 2,300N (Journal of Neurosurgery: Pediatrics)
Let’s plug those numbers into a calculator:
7173N of force. Almost three times the force required to crush a human skull.
Even from half that height, 100 feet, a falling Phantom would generate 3527N, still enough to crush your skull. At 65 feet you might survive the impact as the force is down to 2351N.
There are a lot of variables that I did not account for – drag, impact angle, elasticity in the body and the drone…. Real experiments need to be performed.
Integriography: A Journal of Broken Locks, Ethics, and Computer Forensics 