Measuring the Threat of Drones on U.S. Soil

WASHINGTON — At a military event in August, Venezuelan President Nicolas Maduro was mid speech when two drones exploded near his position on the stage. The alleged attack highlighted the modern threat of drones in relation to national security. It’s a threat of an indeterminate size and Department of Homeland Security officials at a Senate hearing in June testified they could not accurately “determine the full scope (of it)” on U.S. soil.

Informally referred to as “drones,” the official term for these airborne machines is Unmanned Aerial Systems. Functioning as flying computers with remote pilot operation, the term UAS encompasses both commercial devices–used by news agencies, utility companies, movie production teams and other businesses for monetary gain– and recreational devices, used by hobbyists. The type of drones that carry weapons and are used by the U.S. Military are referred to as Unmanned Aerial Vehicles.

The competitive market for drones available for commercial and recreational use is driving rapid technological advancement according to Gartner.

“Personal drone vendors are now aggressively trying to position themselves in the commercial market. Recent technological advances blur the lines, allowing personal drones to be used in many special-purpose applications such as surveillance, 3D mapping and modeling,” said Gerald Van Hoy, senior research analyst at Gartner in a 2017 press release.

And as this technology advances, U.S. safety agencies struggle with how to regulate the machines. In 2012, Congress passed a mandate ordering the integration of commercial drones into U.S. airspace. President Barack Obama signed the bill into law in February 2012, which required the Federal Aviation Administration to allow UAS to fly into airspace reserved for manned planes.

In 2016, FAA began implementing Part 107 of the Code of Federal Regulations, which states that the pilot of commercial drones must be at least 16 years old and certified by the Federal Aviation Administration via a written test. For recreational drone users, there is no regulation to operate a UAS.

The legislation created a complicated paper trail and unnecessary red tape, and so little progress has been made in integrating commercial drones into U.S. airspace, according to Charles Tobin, attorney at Ballard Spahr’s Media and Entertainment Law Group.

“Various people who have looked at the issue feel that the government’s concerns were overstated,” said Tobin. “It seems as if the progress is being stalled without any real regard given to, first of all, the 2012 Congressional mandate, and second of all, the recognition that in an open society, everything presents a certain amount of risk.”

Tobin, who focuses on first amendment rights and represents various media organizations, has been involved in discussing drone policy through a 2017 FAA Advisory Rulemaking Committee. Comprised of federal safety agencies, drone manufacturers, law enforcement officials, hobbyists and representatives from the media, like Tobin, the committee convened to discuss possible ways to move forward on drone regulation.

One proposed solution was to build a drone database. It would require all users to register their drones so that government surveillance could track UAS locations at all times. After many objections stemming from the concern that government surveillance of drones would result in infringement on citizen rights, journalist resources and other entities, no workable solution could be reached. And according to Col. Daniel M. Frickenschmidt, without the proper “mission and authority,” this sort of surveillance just isn’t possible.

“‘Surveillance’ is a very loaded word. It tiptoes on the edge of the Fourth Amendment,” said Frickenschmidt, who formerly served as assistant chief of staff at the U.S. Army Intelligence Center of Excellence and taught at the National War College prior to retirement earlier this year. “And again, a Congressional oversight cannot be underestimated on this,” referring to the 2012 mandate.

The drone industry has grown from $40 million in 2012 to over a billion dollars in 2017, according to consulting firm McKinsey&Company. Goldman Sachs forecast as much as $100 billion in market growth between 2016 and 2020. As the industry continues to expand, regulations will continue to evolve for UAS in order to prevent threats to national security from both international and domestic actors. And a UAS can be well positioned to conduct a possible act of terror. But as attorney Charles Tobin pointed out, so can bikes, automobiles, backpacks and any other number of ordinary objects.

“And it’s a question of not preventing the risk entirely,” said Tobin, “but managing it at a reasonable level.”