Deconstructing Daniel Elwell's decision for the FAA not to be involved in CUAS

A guest post by Travis Moran

FAA Acting Administrator Daniel Elwell garnered headlines last week by making a bold statement about the FAA’s role in CUAS. As reported by Politico:

ELWELL HAS NO INTEREST IN COUNTERDRONE AUTHORITY: …The acting FAA administrator said he would oppose giving his agency the ability to intercept drones. “There have been proposals in the past and discussions about the FAA being responsible not only for detection of drones but mitigating drones around airports,” Elwell said. “And I will tell you, as long as I’m working at the FAA, I’m frankly gonna fight to not have FAA take things out of the sky.”

In this article I address why we should not be surprised, nor for that matter too disturbed by this. Rather, we should see it for what it is – a tacit admission that Fourth and Fifth Amendment constitutional interactions are not in the FAA’s wheelhouse. But there is a fascinating question as to whether Mr. Elwell has the discretion to make that decision.

I will also look at the growing role that I expect DHS to play in C-UAS and offer some insights into how the CUAS market is evolving.

I am guessing that Administrator Elwell is putting the stake in the ground for several reasons. First and foremost is the FAA mission statement:


Our continuing mission is to provide the safest, most efficient aerospace system in the world.


Moreover, it is part of the FAA’s value statement “Safety is our passion. We work so all air and space travelers arrive safely at their destinations.”

I like this. As an all too frequent flier, this makes me happy. On the other hand, as someone who has a deep understanding of the risks that drones pose to aviation, I do not like this, but I understand it.

Here’s why. I am a retired law enforcement (LE) officer. Since retiring, I have worked on security issues for critical infrastructure. And for the past several years I have been involved in working with enterprise customers and security agencies to bridge the gap between law enforcement and the potential threat of UAS.

IT’S ABOUT YOUR RIGHTS

While I was on the job, I arrested a lot of people and seized a lot of property and contraband. I sought and served a lot of search warrants. Each interaction was fraught with a combination of criminal, civil and personal risk. LE is both reactive and proactive depending upon the situation. Sometimes officers are forced into situations where they must impede upon a person’s Fourth Amendment rights.

The Fourth Amendment is the one that says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fifth Amendment also enters into it:

“…Nor be deprived of life, liberty, or property, without due process of law;”


These rights are the focus of intensive training in every academy. They are among the most intrusive actions that the government can take.


The issue of probable cause is central to any counter UAS action. From a LE perspective, determining intent is the essence of making the decision to interdict a drone – effectively to seize private property. It is the dirtiest of all of the many problems associated with C-UAS. For more on this, please see my post, The Counter Drone Conundrum.

To be sure, the FAA does civil enforcement in the form of inspections, fines and revoking licenses, but that is very different from questions of criminal intent. Which to me is what Mr. Elwell meant when he said:


I’m frankly gonna fight to not have the FAA take things out of the sky.”


TAMING THE WILD WEST

Later in the press conference, Mr. Elwell stated the FAA is working on a document “…With sort of a frequently-asked-question thing and what we’re doing to go through the standards and the performance that we will expect for a drone mitigation system at your airport.

It should come as no surprise – especially after Gatwick and Newark – that the FAA is getting barraged with questions from airports and airlines about what the FAA is going to do about ‘the drone problem’. Big money is involved, I’ve seen estimates for Gatwick at north of US$60M. All too often it takes the interruption of commerce to get the ball moving… so that standards and performance criteria are written and adopted.

With a tip of the hat to better late than never, this is precisely what is needed and needed now. Strict technical standards and testing are essential and must play well with FCC regulations. Beyond that will be maintenance and training standards as well as company by company, sometimes site by site policies.

At last count there were some 250 C-UAS companies from 20 plus countries. A lot of companies who don’t have the necessary resources are going to get knocked out of the game. Which is a good thing since the CUAS market has gotten to look an awful lot like the Wild West, replete with a lot of snake oil.

THE THREE C-UAS SECTORS

Three distinct markets are in different stages of evolution.

Airports
Congress hit this hard in the 2016 Extension and again in the 2018 Reauthorization. There is a very real, well-founded concern. They expect answers and solutions. It is going to be interesting to see how the FAA tries to square Mr. Elwell’s position which seems to fly in the face of SEC. 44810. Airport Safety and Airspace Hazard Mitigation and Enforcement.

Jim Poss did an elegant job summarizing this in his article, The “Why’s” of the 2018 FAA Reauthorization Act.

The FAA must set up an aviation rulemaking committee (ARC) to make recommendations and test C-UAS at five airports, including one top 10 passenger boarding airport. Airport sponsors can buy certified counter UAS systems using the Airports Improvement Program funding (AIP).

(b) PLAN (4) Non Delegation is extremely restrictive. It begs the question of how much latitude the FAA actually has in determining their role in C-UAS.


The plan cannot delegate C-UAS authority to other federal, state, local, territorial, or tribal agencies, or an airport sponsor.


Then Poss added:

I had to take a knee after reading this section. It has everything the FAA needs to launch an effective C-UAS system to protect our nation’s airports. Allowing airport sponsors to use AIP to buy C-UAS is a huge advancement and provides airports a solid C-UAS funding mechanism for C-UAS. The biggest thing in this section—drum roll please—gives the FAA authority to jam drone data links, shoot down rogue drones, hack into their systems and locate drones via their cellular communications. Wow.

This is definitely one to watch.

Large venues and events
These are significant targets of immediate concern. If you read Dronin’ On, you have seen comments from people like NFL Security SVP Cathy Lanier. You may be aware of the extraordinary measures that the NFL went to ti secure the Super Bowl in Atlanta in February where a number of CUAS vendors were involved. As they were at events as diverse as the Davos World Economic Forum and the Albuquerque Balloon Fiesta.

Enterprise
Early adopters are beginning implementations. This is where I spend my time so I can tell you that adoption is slow for a number of reasons:

  • Despite growing awareness, not much has been done to quantify the threat, why spend against a problem you may or may not have.
  • Some executives are put off because CUAS is not a complete solution because interdiction is not allowed.
  • There is a lack of standards, no one wants to buy the wrong thing.
  • In part, this is because no industry associations have emerged to drive standards. There will be differences between the needs and concerns of various verticals.

The problem and the concerns are growing, as is the desire for government leadership.

DHS AND SECTION 2209

US Power Plants – map courtesy DOE

What is clear to me is that DHS has the expertise to develop the solution that Congress called for in SEC. 2209 of the 2016 FAA Extension.

SEC. 2209. APPLICATIONS FOR DESIGNATION. The Secretary of Transportation shall establish a process to allow applicants to petition the FAA to prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility.

This provision was written because Congress knows that 85% of all critical infrastructure is privately owned. We are talking about the entire electrical grid, our oil and gas infrastructure, our renewable energy infrastructure, our water systems and on. That’s a lot of lobbying power and it touches every state and district.

As I have written before, implementing the 2209 process is going to be extremely complicated if we are going to have any low altitude airspace left. When you look at a map it becomes clear that we cannot simply designate every facility, and every mile of wire and pipeline that applies for a 2209 restriction, like a no-fly zone.

A lot of decisions will have to be made to formulate a policy about what to protect. There will have to be an assessment process to evaluate each application to determine what is eligible – something that is both time consuming and expensive. Beyond bandwidth, I can tell you from personal experience that the FAA does not have the domain expertise to make informed decisions about critical infrastructure other than airports.

Why would they or should they?

DHS does. They already are responsible for protecting these sectors through the Cyber and Infrastructure Security Agency (CISA). They have Protective Security Advisors (PSA’s) across the United States who already have relationships with the sectors and facilities. In many cases, they have already performed criticality assessments.

The CISA mission is very clear:

  • CISA coordinates security and resilience efforts using trusted partnerships across the private and public sectors, and delivers training, technical assistance, and assessments to federal stakeholders as well as to infrastructure owners and operators nationwide.
  • CISA provides consolidated all-hazards risk analysis for U.S. critical infrastructure through the National Risk Management Center.

The point being, the structure to manage the 2209 process is to some extent already in place.

Beyond that, DHS has experience with intent, particularly as it applies to critical infrastructure sectors outside of airports. Remember that determining intent is central to any concept of seizure or interdiction.

In the 2018 Reauthorization, SEC. 383 Airport Safety and Airspace Hazard Mitigation and Enforcement gives DHS and DOJ permission to deploy counter UAS technology.

Intent is going to have to be determined using a layered approach to establish probable cause. It is hard to say exactly what it will look like, but it is likely to include pre-operational intelligence, TFRs, visual confirmation of a potential payload. Height, speed, course and the drones carrying capacity will of course be considered. As will the presence or absence of a Remote ID signal and UTM data.

In this regard, I believe that in certain situations the data provided is going to have to be more complete than a call sign, user name and some indication of registration. In addition, attention is going to have to be paid to securing the ID to make sure that it can’t be easily forged. This is one of the many issues that the FAA and the USS suppliers selected for the Remote ID initiative in December are going to have to solve.

However the final pieces come together, and it’s likely to be a work in progress, the concept behind this kind of decision tree will be very similar to the use of force continuum every officer must mentally go through in an encounter (often in milliseconds) before force is applied. Except that AI will probably do a lot of it.

CONCLUSION

While the focus of this article has been on CUAS, in closing, I would like to say a word to the entire UAS industry.


This cannot be a one-way
conversation.


Companies interested in drone commerce need to engage to protect their own interests now before vast swaths of lower airspace disappear.

It is going to take a rational balance of interests to make this work. Today there are numerous opportunities for infrastructure owners and UAS companies to jointly develop, research and test recommendations. We know that the FAA prefers this type of proactive approach, and my sense is that DHS will be open to it as well. There are simply too many problems to solve to hope that somehow government can or will do it all in a timely manner.

Back to our Mr. Elwell. We will have to see what role the FAA will play. By the letter of the Reauthorization, they will have to. But no matter which agency does it, law enforcement enforces the laws, they do not make them. Whatever authority that they are given is what they will follow and use. It is in all of our best interests to shape them.


Travis Moran is a retired law enforcement professional with over 26 years of enforcement, security, and intelligence experience.
Travis began his federal law enforcement career with the U.S. National Central Bureau – Interpol, before transitioning to the U.S. Department of State and then ultimately the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). During his tours of duty, Travis worked both domestically and internationally on a variety of criminal matters to include narcotics and weapon trafficking organizations, terrorism, mass murders, explosives, bank and immigration fraud.
Travis has extensive experience in energy security working as a physical security specialist for both investor-owned utilities and the North American Electric Reliability Corporation (NERC). During his work with the utility sector, Travis has become an energy subject matter expert regarding threats posed to energy companies from unmanned aircraft systems (UAS/drones).
Travis holds a Master of Arts in Criminology, Law, and Society, a Master of Science in Criminology and a Bachelor of Business Administration.
Link with Travis – https://www.linkedin.com/in/travis-moran-75350665/
follow Travis – @dronin_on

 

 

 

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