Federal law enforcement officials make the case for expanded drone authorities

As the use of unmanned aircraft systems in U.S. skies surges, federal law enforcement agencies want Congress to expand their authorities to deal with the growing threat.

During a House Homeland Security joint subcommittee hearing Tuesday, officials from the Department of Justice, the Federal Bureau of Investigation and Customs and Border Protection told lawmakers that current legal authorities are insufficient to deal with drones, which have proliferated in use near U.S. borders and are increasingly causing disruptions at sporting events and other major public gatherings.

Much of the discussion during Tuesday’s hearing of the Counterterrorism, Law Enforcement, and Intelligence and Transportation and Maritime Security subcommittees centered on the Counter-UAS Authority Security, Safety, and Reauthorization Act (H.R.8610). The bipartisan bill from House Homeland Security Committee Chair Mark Green, R-Tenn., would renew and reform counter-UAS legal authorities, in addition to strengthening the Federal Aviation Administration’s oversight powers of drones.

“The reason we need legal authority is that without it, use of the most effective types of drone detection and counter-drone technologies could violate criminal laws, including those that prohibit destroying or disabling aircraft in flight and intercepting signals and communications,” said Brad Wiegmann, the DOJ’s deputy assistant attorney general for national security.

With current authorities set to lapse at the end of next week, Wiegmann said the DOJ appreciates lawmakers’ work on reauthorization and is also “eager to work with Congress” on legislation that goes beyond what’s currently on the books.

The bill from Rep. Green would also require the Department of Homeland Security to create a counter-UAS mitigation pilot program that would provide select state and covered law enforcement agencies with some drone-mitigation powers. The need for greater involvement from state, local, tribal and territorial (SLTT) partners was mentioned repeatedly by federal officials Tuesday.

Robert W. Wheeler Jr., assistant director of the FBI’s Critical Incident Response Group, said the bureau “strongly supports pursuing expanded counter UAS authorities for state, local, tribal and territorial partners as robustly and swiftly” as possible. Since the FBI was granted counter-UAS authorities in 2019, it has conducted 69 operational missions and has detected more than 1,000 drones in violation of federal law, Wheeler said.

One of those missions occurred in April, when a man flew a drone close to the finish line of the Boston Marathon. The FBI addressed the threat, but Wheeler said the agency “cannot alone protect” the over tens of thousands of annual mass gatherings in the country. 

“The use of counter-UAS to protect against these situations is crucial and can only be fully addressed by expanding the capability to include our state and local partners,” he said.

Wiegmann echoed Wheeler’s calls for expanded SLTT authorities, noting that the FBI is only able to “cover a tiny fraction” of major U.S. events and the “demand for protection across the country just vastly exceeds available federal resources.” Enlisting state and local partners, he said, would require federal training to ensure they’re following procedures on the type of technology they can use, the data they can collect, and the general rules of engagement, among other areas.

SLTT officials would also have to work with the FAA on compliance matters, and all activities would have to be approved by DHS and the DOJ. “So it’s quite a labor-intensive kind of process,” Wiegmann said. The DOJ envisions a state and local pilot program to get those authorities “up and running so that they can mirror and do the same things that we do at the federal level, and that includes protecting privacy and civil liberties.” 

Several lawmakers and witnesses during the hearing nodded to the importance of enshrining civil liberties protections in any future UAS legislation; the House bill up for reauthorization would “enhance” those protections for Americans using drones “in a legal and responsible manner,” according to Texas Republican August Pfluger, who chairs the Counterterrorism, Law Enforcement, and Intelligence subcommittee.

Those protections would be all the more necessary given a federal push for an expansion of authorities for what constitutes a covered event. Wiegmann said the FBI and DHS are allowed to cover a number of special events, including the Super Bowl, World Series and the Indianapolis 500. But giving state and local authorities the ability to take action in less high-profile but still critical events is something that should “vastly” expand “the scope of counter-drone protection,” he said.

Expanded authorities are also needed at the southern and northern borders, said Keith Jones, CBP’s deputy executive assistant commissioner of air and marine operations, who called the volume of UAS activity within 500 yards of Mexico and Canada “staggering.” 

CBP has deployed detection technology, but the agency is up against dedicated counter-surveillance efforts, with drones capturing U.S. law enforcement activities 24 hours a day, 365 days a year. 

Jones said that in 2023, CBP documented 45,000 UAS detections at the southwest border, with about 2,500 or so making an actual “incursion.” 

“We’re talking about a very small subset,” he said. “A lot of the surveillance is taking place outside of our jurisdiction, in foreign airspace. That makes it particularly challenging for mitigation.”

Beyond counter-surveillance efforts using drones, Jones said CBP has seen small quantities of cocaine, heroin, methamphetamine and other “contraband” like weapons moved “across our borders” via UAS. Fentanyl has not been transported across the border in this manner, Jones said, mostly because “the payload capacity is so small” that the cartels would “have to make multiple trips.”

When asked by Rep. Lou Correa, D-Calif., if CBP needs a federal law to better protect the border and bolster counter-UAS authorities, Jones replied “yes, we do.”

“We are working with our federal, state and local partners on a daily basis,” he said. “They’re our partners. We’re all on the same team. I’m glad. We need the authority to designate select state and local law enforcement.”