[Senate Hearing 115-476]
[From the U.S. Government Publishing Office]
S. Hrg. 115-476
S. 2836, THE PREVENTING EMERGING THREATS ACT OF 2018: COUNTERING
MALICIOUS DRONES
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HEARING
BEFORE THE
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
JUNE 6, 2018
__________
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota KAMALA D. HARRIS, California
STEVE DAINES, Montana DOUG JONES, Alabama
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Christopher S. Boness, Senior Professional Staff Member
Margaret E. Daum, Minority Staff Director
J. Jackson Eaton IV., Minority Senior Counsel
Subhasri Ramanathan, Minority Counsel
Donna M. Peterson, Minority Federal Bureau of Investigation Detailee
Laura W. Kilbride, Chief Clerk
Bonni E. Dinerstein, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Johnson.............................................. 1
Senator McCaskill............................................ 3
Senator Lankford............................................. 12
Senator Hassan............................................... 15
Senator Heitkamp............................................. 22
Senator Carper............................................... 24
Senator Hoeven............................................... 27
Prepared statements:
Senator Johnson.............................................. 39
Senator McCaskill............................................ 40
WITNESSES
Wednesday, June 6, 2018
Hon. David J. Glawe, Under Secretary for Intelligence and
Analysis, U.S. Department of Homeland Security................. 5
Hayley Chang, Deputy General Counsel, U.S. Department of Homeland
Security....................................................... 7
Scott Brunner, Deputy Assistant Director, Critical Incident
Response Group, Federal Bureau of Investigation, U.S.
Department of Justice.......................................... 7
Angela H. Stubblefield, Deputy Associate Administrator for
Security and Hazardous Materials Safety, Federal Aviation
Administration, U.S. Department of Transportation.............. 9
Alphabetical List of Witnesses
Brunner, Scott:
Testimony.................................................... 7
Prepared statement........................................... 54
Chang, Hayley:
Testimony.................................................... 7
Prepared statement........................................... 44
Glawe, Hon. David J.:
Testimony.................................................... 5
Prepared statement........................................... 44
Stubblefield, Angela H.:
Testimony.................................................... 9
Prepared statement........................................... 57
APPENDIX
Letter from St. Louis Cardinals.................................. 71
Letter from Northern Plains Unmanned Aircraft Systems Test Site.. 75
Statements submitted for the Record:
American Civil Liberties Union............................... 77
Kirstjen Nielsen, Secretary, U.S. Department of Homeland
Security................................................... 80
Security Industry Association................................ 82
National Football League..................................... 83
Responses to post-hearing questions for the Record:
Mr. Glawe and Ms. Chang...................................... 86
Mr. Brunner.................................................. 123
Ms. Stubblefield............................................. 145
S. 2836, THE PREVENTING EMERGING
THREATS ACT OF 2018: COUNTERING MALICIOUS DRONES
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WEDNESDAY, JUNE 6, 2018
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:59 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Ron Johnson,
Chairman of the Committee, presiding.
Present: Senators Johnson, Lankford, Hoeven, Daines,
McCaskill, Carper, Heitkamp, Peters, Hassan, and Harris.
OPENING STATEMENT OF CHAIRMAN JOHNSON
Chairman Johnson. Good morning. This hearing will come to
order.
I want to thank our witnesses for your time here today and
agreeing to appear, for your testimony, and I look forward to
your answers to our questions.
I would like to ask consent that my prepared statement, be
entered in the record.\1\
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\1\ The prepared statement of Senator Johnson appears in the
Appendix on page 39.
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We also have a letter of support from the Security Industry
Association that I would also like to have entered in the
record,\2\ without objection. Senator McCaskill.
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\2\ The letter referenced by Senator Johnson appears in the
Appendix on page 82.
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Senator McCaskill. No objection.
Chairman Johnson. OK. Did you want to----
Senator McCaskill. Yes, Mr. Chairman, I would like to place
into the record testimony that has been provided by the
Director of Security and Special Operations of the St. Louis
Cardinals.\3\ I am really proud that the Cardinals are one of
only four Major League Baseball (MLB) teams to achieve the
``SAFETY'' designation and distinction from the Department of
Homeland Security (DHS) by working countless hours to make sure
that their stadium facility is secure and that they have the
proper procedures and protocol and training in place for the
personnel there to keep the best fans in baseball happy,
secure, and having a wonderful time with their families. They
have submitted testimony on this subject to the Committee, and
I would ask that this testimony be made part of the record
today.
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\3\ The letter referenced by Senator McCaskill appears in the
Appendix on page 71.
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Chairman Johnson. Without objection.
Milwaukee fans are pretty good, too.
Senator McCaskill. Not as good as Cardinals. Sorry.
[Laughter.]
More World Series than everyone but the New York Yankees.
Chairman Johnson. OK.
Senator McCaskill. We do not have the payroll or the
market. [Laughter.]
Sorry. Do not get me started.
Chairman Johnson. On that note of nonpartisanship, we had a
secure briefing yesterday, and a number of you were in
attendance. I appreciate that. I am always leery of holding in
open session these hearings on different threats because I
really do not want to give the bad guys any ideas. I am
certainly willing to make an exception in this case because I
think the threats are just so incredibly obvious, and one thing
that made a pretty big impression on me, which is why we have a
video screen set up--if we can run it right now--is a video
that was shown in that setting, which is totally not secure.
This is the Islamic State of Iraq and Syria (ISIS) video put
out on YouTube to basically brag about what their capabilities
are when it comes to the use of drones. So why do we not
quickly show that for the Committee.
[Video played.]
This is an ISIS drone all ready to drop a grenade on an
Iraqi target. It looks like something coming out of the U.S.
Defense Department (DOD), quite honestly, when we get it to
run. It looks like something out of our Defense Department, but
this is from ISIS. This is all part of their propaganda. If we
can get this thing going?
Senator Carper. Well, their drones are slow. [Laughter.]
Chairman Johnson. They are really not. It is well worth
seeing, so we will take----
Senator McCaskill. Who is trying to run it?
[Video played.]
Chairman Johnson. It is a good thing I am not in charge
because it would never get done.
Senator Carper. What are we looking at?
Chairman Johnson. So this is a YouTube video posted by
ISIS, and it is showing their use of a drone against an Iraqi
site. I am not exactly sure. Maybe one of the witnesses can
tell us what they are actually using the drone against.
Mr. Brunner. Chairman, it is our understanding that ISIS is
targeting an Iraqi counter-improvised explosive device (IED)
unit that is approaching a location.
Chairman Johnson. OK. Are we going to get it? OK. So you
can go on YouTube and actually see it for yourself, but it is
frightening. And as we began this discussion--and, really, from
my standpoint, the discussion started when I was interviewing
Secretary Nielsen for her current position, and she said that
her top priority was getting the authority to counter this
emerging threat that I think we are so far behind the curve on.
I was shocked. I just assumed that if there were drones
threatening, whether it is the Cardinals baseball stadium, the
Brewers stadium, or whatever the U.S. Secret Service (USSS)
trying to protect our President or Vice President, activities
along the border, we have no authority to counter those drones.
We have given some limited authority to the Defense Department,
and that is about it. They are kind of in the early stages of
working with the Federal Aviation Administration (FAA), and it
sounds like it is a very cooperative effort here, which we
need. So from my standpoint, the piece of legislation we have
introduced with bipartisan cosponsors, the Preventing Emerging
Threats Act of 2018, is just a table stakes piece of
legislation.
One of the reasons I wanted to hold this hearing today, we
have the debate and hopefully the passage of the National
Defense Authorization Act (NDAA) coming up over the course of
the next couple of weeks. It is my goal to get this piece of
legislation attached to that, hopefully just in the manager's
amendment, so we give DHS and the agencies under the Department
of Justice (DOJ) the authority, just the table stakes authority
to begin the process, the very complex process, of addressing
this threat that has really been there, and we should thank our
lucky stars that we have not seen a real tragic incident coming
from this.
Again, I appreciate the witnesses being here. With that, I
will turn it over to our Ranking Member.
OPENING STATEMENT OF SENATOR MCCASKILL\1\
Senator McCaskill. Thank you, Mr. Chairman, and thank you
for holding the hearing. I look forward to continued work with
you on this bill and that we can hopefully continue to adjust
and take input to provide the kinds of authorities needed for
our government to keep us safe, while at the same time protect
Americans' privacy.
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\1\ The prepared statement of Senator McCaskill appears in the
Appendix on page 40.
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The Department of Transportation (DOT) estimates that there
could be as many as 4 million drones owned and operated by
recreational and commercial users by 2021, and the FAA
estimates that recreational and commercial drone sales will
increase to 7 million by 2020. We know that drones can be used
for good and for bad. People fly them for fun and use them to
take amazing aerial photographs. They are used for crop
dusting, newscasting, and I understand that they have great
potential for precision agriculture, which is so necessary
today in light of all the challenges and stresses that our
farming families face in terms of input costs.
Drones also play a critical role for public safety. We know
they support firefighting, search and rescue operations, and
that they monitor critical infrastructure. We are constantly
innovating in America, and in just a few years drone
capabilities and advancements may far exceed our imagination
today. We must encourage and foster that innovation in
Congress.
But, unfortunately, drones have the potential to cause
great harm. Terrorist organizations, as the Chairman has just
indicated, have used drones overseas, and we expect that
terrorists are interested in exploiting those same capabilities
here in the United States.
The Federal Bureau of Investigation (FBI) Director has
testified that the threat of that terrorists will use drones in
the United States is imminent. As the Director explained to
this Committee, drones are easy to acquire and operate but are
``quite difficult to disrupt and monitor.'' That is the
challenge we face: how to disrupt and monitor the bad guys
without interfering with privacy or recreational uses of these
instruments by the American public.
Then-Acting Secretary Elaine Duke testified that drones
could be used to transport illicit materials or for violent
purposes, and that we lack the signals to interdict drones.
Just last month, we heard from Secretary Nielsen, who expressed
concern about drones as a ``very serious, looming threat,'' and
that the Department is unable to effectively counter malicious
use of drones because they are hampered by Federal laws enacted
long before the unmanned technology existed.
I would really like to hear DHS and DOJ address today, in
this public hearing, how they can help owners and operators of
critical infrastructure secure mass gatherings. I understand
that you do not have this authority yet, but if you do, I want
to know how you intend to leverage your authority to help State
and local stakeholders. What do they get out of Congress
passing this bill? What do the people that are running the 4th
of July parade in Webster Groves get from this legislation? How
are we helping them address the threat where it will really
come home? And, that is, through the interdiction of drones in
situations where casualties could occur by people who want to
destroy not just the United States but our way of life.
I want to thank the DHS, FBI, and FAA for working with the
Committee to help develop the language in our bill. It was
informed by the findings of an interagency group, which I
understand you were all a part of, that identified impediments
and gaps in the Federal Government's ability to respond. The
interagency committee concluded that without changes in the
law, Federal agencies will be prevented from developing,
testing, evaluating, and countering most drone technologies
that we need to address.
I look forward to hearing from our witnesses today about
how this act helps you address these gaps and impediments. I
also look forward to hearing from other stakeholders, many who
I understand will submit statements for the record about ways
in which we can ensure that any legitimate concerns are
addressed before we move a bill out of Committee.
We have a real security threat that I think we must
address, and I look forward to working with the Chairman to
make sure that our legislative approach is the right one.
Thank you, Mr. Chairman.
Chairman Johnson. Thank you, Senator McCaskill.
It is the tradition of this Committee to swear in
witnesses, so if you will all stand and raise your right hand.
Do you swear that the testimony you will give before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Mr. Glawe. I do.
Ms. Chang. I do.
Mr. Brunner. I do.
Ms. Stubblefield. I do.
Chairman Johnson. Please be seated.
Our first witness is the Honorable David Glawe. Mr. Glawe
is the Under Secretary for Intelligence and Analysis at the
Department of Homeland Security. Prior to his confirmation, he
was a Special Assistant to the President and served several
years as the Assistant Commissioner and Chief Intelligence
Officer in Customs and Border Protection (CBP) for DHS. Mr.
Glawe has a certificate from the John F. Kennedy School of
Government at Harvard University and a Bachelor of Arts degree
from the University of Northern Iowa. He has also received the
National Intelligence Superior Service Medal for his work
supporting the intelligence community and promoting our
national security. Mr. Glawe.
TESTIMONY OF THE HONORABLE DAVID J. GLAWE,\1\ UNDER SECRETARY
FOR INTELLIGENCE AND ANALYSIS, U.S. DEPARTMENT OF HOMELAND
SECURITY
Mr. Glawe. Chairman Johnson, thank you, Ranking Member
McCaskill as well, thank you.
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\1\ The joint prepared statement of Mr. Glawe and Ms. Chang appears
in the Appendix on page 44.
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Chairman Johnson, Ranking Member McCaskill, and
distinguished Members of the Committee, thank you for inviting
DHS to speak with you today. We appreciate the opportunity to
discuss the Department of Homeland Security's role in
countering threats from unmanned aircraft systems (UAS) or
drones, in our national airspace system (NAS).
First, I would like to thank the Committee for its
attention to this issue and holding this hearing to highlight
the critical importance of the interagency efforts to secure
the national airspace. I would also like to thank Chairman
Johnson, Ranking Member McCaskill, and the other Members of
this Committee for introducing and cosponsoring a bill that
addresses security threats from small unmanned aircraft
systems. With enactment of this proposal, Congress would reduce
risks to public safety and national security and ensure that
the United States remains a global leader in unmanned aircraft
innovation.
Unmanned aircraft systems offer tremendous benefits to our
economy and society. They promise to create countless American
jobs, transform the delivery of household goods, improve safety
of dangerous occupations, and expand access to life-saving
medical supplies. DHS strongly supports the Federal Aviation
Administration's efforts to integrate unmanned aircraft systems
into our national airspace. We must also recognize the
increasing security challenges that require a layered and
parallel government security response to protect the public
from the misuse of this technology.
This threat is real. We are witnessing a constant evolution
in the danger posed by drones as the technology advances and
becomes more available and affordable worldwide. Commercially
available drones can be employed by terrorists and criminals to
deliver explosives or harmful substances, conduct surveillance
both domestically and internationally against U.S. citizens'
interests and assets. We know ISIS fighters in Iraq and Syria
have used unmanned aircraft to deliver explosives and continue
to plot unmanned aircraft use in terrorist attacks elsewhere.
This is a significant threat to the homeland.
The technology also presents a growing risk to law
enforcement officers as they execute their mission. On the
Southern Border, transnational criminal organizations (TCOs)
are using drones to traffic narcotics and conduct
countersurveillance to avoid U.S. law enforcement and interfere
with ongoing law enforcement operations. The U.S. Coast Guard
(USCG) is also observing increased overflights of unmanned
aircraft while performing its missions. I am confident this
threat will evolve and malicious use of drones will be more
sophisticated.
Current statutory authorities do not address threats posed
by careless, reckless, or malicious use of drones. DHS needs
counter unmanned aircraft system (C-UAS) authorities to detect,
track, and mitigate threats from small unmanned aircraft.
Without this authority, DHS is unable to develop and deploy
countermeasures to mitigate nefarious use of this technology.
The enactment of this bill will be a first step to secure our
borders, protect critical infrastructure and large crowds at
special events, and provide direct support to our State and
local partners.
This bipartisan legislation you cosponsored represents a
critical step in enabling the Department of Homeland Security
to address this vulnerability. It is similar to the existing
statutory authorities granted to the Department of Defense in
the 2017 and 2018 National Defense Authorization Acts, and it
contains robust measures to protect privacy and civil
liberties.
The threat is real and dynamic. Malicious cyber actors,
transnational criminal organizations, terrorists, and foreign
intelligence services have used it and will use it for
nefarious purposes. I support your introduction of this bill
which acknowledges the need for flexibility to address this
threat and perform our mission.
Chairman Johnson, Ranking Member McCaskill, and
distinguished Senators of the Committee, thank you again for
your attention to this important issue. I look forward to the
partnership as we address the threat and continue our work to
protect the homeland. My colleagues and I look forward to
answering your questions.
Chairman Johnson. Thank you, Mr. Glawe.
Our next witness is Hayley Chang. Ms. Chang is the Deputy
General Counsel for DHS. She has previously served in the
Department of Justice as an Assistant U.S. Attorney. She also
served as Counsel to the Deputy Attorney General (AG) and
advised DOJ leadership on the Committee on Foreign Investment
in the United States. Ms. Chang is a graduate of Cornell Law
School and holds a Bachelor's degree from Hillsdale College.
Do you have a statement or are you just here to answer
questions?
Ms. Chang. Yes, Mr. Chairman.
Chairman Johnson. OK. You are here to answer questions?
Ms. Chang. I have a statement.
Chairman Johnson. OK, great. Go ahead.
TESTIMONY OF HAYLEY CHANG,\1\ DEPUTY GENERAL COUNSEL, U.S.
DEPARTMENT OF HOMELAND SECURITY
Ms. Chang. Thank you. Good morning, Chairman Johnson,
Ranking Member McCaskill, Members of the Committee. Thank you
for asking DHS here today to talk about the emerging drone
threat. Thank you for your bill, the Preventing Emerging
Threats Act of 2018, which gives our officers the tools they
need to evolve with the threat and keep our families and
communities safe.
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\1\ The joint prepared statement of Ms. Chang and Mr. Glawe appears
in the Appendix on page 44.
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I would like to especially thank you for a critical piece
of that bill, the opening line, ``Notwithstanding any provision
of Title 18 United States Code.'' That is the heart of the
issue. Without direction that is that clear, our front-line
officers will find their hands continually tied as they try to
keep us safe.
Because technology is evolving faster than the law, things
that were not illegal yesterday are suddenly deemed illegal
today. Things that are not illegal today could be deemed
illegal tomorrow. While some have suggested smaller, short-term
fixes, tweaks and new exceptions to individual subsections of
the code, that would not give our front-line officers the
clarity that they need. It is too much to place that burden on
our front-line officers to risk uncertainty and confusion when
they need to move forward to address this threat. And, worse,
without a law that is this clear, we put our officers at risk
for criminal penalties just for doing their jobs. That is why
we thank you for taking the straightforward approach. Just like
Congress provided last fall for our partners at the Department
of Defense and the Department of Energy (DOE), this clear
guidance communicates to our front-line officers that they are
valued and empowered to do their jobs.
We look forward to answering the Committee's questions
today. Thank you.
Chairman Johnson. Thank you, Ms. Chang.
Our next witness is Scott Brunner. Mr. Brunner is the
Deputy Assistant Director of the Critical Incident Response
Group (CIRG) for the Federal Bureau of Investigation. Prior to
his current role, Mr. Brunner served as the Assistant Special
Agent in Charge of the National Security Intelligence Program
of the Louisville FBI Division. Mr. Brunner joined the FBI in
1995 as a Special Agent in the Portland Division and has been
in law enforcement since 1992, when he became a patrol officer
for the Oklahoma City Police Department. Mr. Brunner.
TESTIMONY OF SCOTT BRUNNER,\2\ DEPUTY ASSISTANT DIRECTOR,
CRITICAL INCIDENT RESPONSE GROUP, FEDERAL BUREAU OF
INVESTIGATION, U.S. DEPARTMENT OF JUSTICE
Mr. Brunner. Good morning, Chairman Johnson, Ranking Member
McCaskill, and members of the Committee. Thank you for the
opportunity to discuss the FBI's concerns regarding the threat
posed by unmanned aircraft systems. On behalf of the men and
women of the FBI, let me begin by thanking you for your ongoing
support of the Bureau.
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\2\ The prepared statement of Mr. Brunner appears in the Appendix
on page 54.
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Today's FBI is a global, threat-focused, intelligence-
driven organization. Each FBI employee understands that to
defeat the threats facing our Nation, we must constantly strive
to be more efficient, effective, and looking over the horizon.
Just as our adversaries continue to evolve, so must the FBI. We
live in a time of acute and persistent terrorist and criminal
threats to our national security, our economy, and our
communities. These diverse threats underscore the complexity
and breadth of the FBI's mission.
We remain focused on protecting the United States against
terrorism, foreign intelligence, and cyber threats; upholding
and enforcing the criminal laws of the United States;
protecting privacy, protecting civil rights and civil
liberties; and providing leadership and criminal justice
services to our Federal, State, municipal, and interagency
partners.
One significant threat to the safety of the American people
concerns low-cost UAS. Today's UAS have evolved considerably
from the early remote control aircraft of the 20th Century. UAS
now have longer flight durations, larger payloads, and
sophisticated maneuverability. They are easy to acquire,
relatively easy to operate, and quite difficult to disrupt and
monitor. Rapid development of UAS technology offers substantial
benefits such as creating new and innovative ways to deliver
goods and services and providing a safe means of inspection of
critical infrastructure.
But this technology also raises new risks. If operated
negligently, recklessly, or maliciously, UAS can cause
injuries, damage, and death. The FBI is concerned that
criminals and terrorists will exploit UAS in ways that pose a
serious threat to the safety of the American people. Sadly,
these threats are not merely hypothetical. For more than 2
years, the Islamic State of Iraq and ash-Sham and other
terrorist groups overseas have perfected the use of cheap,
commercially available drones for attacks and reconnaissance.
As Director Christopher Wray testified last year, the FBI is
concerned that these deadly tactics will soon reach our
homeland in the form of domestic attacks, domestic terrorist
attacks, illegal surveillance over critical infrastructure, or
as a vehicle for either chemical, biological, radiological
(CBR) attack or traditional kinetic attacks on large open-air
venues such as concerts, ceremonies, and sporting events, or
attacks against government facilities, installations, and
personnel. That threat could manifest itself imminently.
In addition to national security threats, UAS pose criminal
threats. Drug traffickers have used UAS to smuggle narcotics
across the U.S. Southern Border, and criminals have used UAS to
deliver contraband inside Federal and State prisons. Similar to
national security threat actors, criminal actors have utilized
UAS for both surveillance and countersurveillance in order to
evade or impede law enforcement.
UAS technology renders traditional, two-dimensional
security measures, such as perimeter fences and security gates,
ineffective, enabling criminals, spies, and terrorists to gain
unprecedented, inexpensive, and often unobtrusive degrees of
access to previously secure facilities. Finally, the mere
presence of UAS operations in the vicinity of an emergency
scene, even negligently, could impede emergency service
operations, especially aviation-based responses.
At present, the FBI and our Federal partners have very
limited authority to counter this new threat. Potential
conflicts in Federal criminal law limit the use of technologies
that would enable the FBI to detect or, if necessary, to
mitigate UAS that threaten critical facilities and assets.
Absent legislative action, the FBI is unable to effectively
protect the United States from this growing threat. As you
know, the Administration recently proposed counter-UAS
legislation designed to fill this gap. The legislation would
authorize the Department of Justice and the Department of
Homeland Security to conduct counter-UAS activities
notwithstanding potentially problematic provisions in the
Federal code. The legislation would extend these authorities
within a framework which provides appropriate oversight,
protects privacy and civil liberties, and maintains aviation
safety.
Chairman Johnson, Ranking Member McCaskill, and Members of
the Committee, thank you again for this opportunity to discuss
the FBI's concerns regarding the threats posed by UAS. We are
grateful for the support you have provided to the FBI, and your
support makes a difference every day in the lives of Americans
that we strive to protect. We welcome the introduction of the
Preventing Emerging Threats Act of 2018. This legislation would
provide the authorities requested in the Administration's
proposal, which we believe are necessary to mitigate the
national security and criminal threats posed by UAS.
I look forward to discussing this important legislation
with the Committee today.
Chairman Johnson. Thank you, Mr. Brunner.
Apparently we do have the video ready, but we are not going
to run it now. I want you to get it ready, so as soon as Ms.
Stubblefield is done with her testimony, we can hit play.
Our next witness is Angela Stubblefield who has served as
the Deputy Associate Administrator for Security and Hazardous
Materials Safety for the Federal Aviation Administration since
2013. She previously served as the Director of National
Security Programs and Incident Response for FAA. Prior to
joining FAA, Ms. Stubblefield served both as active-duty and in
civilian positions for the United States Marine Corps. She
graduated from George Mason University with a Master's in
transportation policy, operations, and logistics and a
Bachelor's degree from the University of Virginia. Ms.
Stubblefield.
TESTIMONY OF ANGELA H. STUBBLEFIELD,\1\ DEPUTY ASSOCIATE
ADMINISTRATOR FOR SECURITY AND HAZARDOUS MATERIALS SAFETY,
FEDERAL AVIATION ADMINISTRATION, U.S. DEPARTMENT OF
TRANSPORTATION
Ms. Stubblefield. Thank you, Mr. Chairman, and good
morning, sir. Good morning, Ranking Member McCaskill and
Members of the Committee. Thank you for inviting the FAA to
speak today.
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\1\ The prepared statement of Ms. Stubblefield appears in the
Appendix on page 57.
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The FAA's primary mission is to provide the safest, most
efficient airspace system in the world. We ensure aircraft move
safely through the Nation's skies 24 hours a day, 365 days a
year, over nearly 30 million square miles of airspace.
UAS technology represents the fastest-growing sector in
aviation today. In fact, the FAA recently surpassed 1 million
UAS registrations. And while UAS technology offers tremendous
benefits to the economy and society, we recognize the misuse of
this technology poses unique security challenges. I would like
to discuss the FAA's work with our security partners to address
these threats, our focus on ensuring safety and maintaining
airspace efficiency, while supporting national security and law
enforcement missions, and taking the next steps in building a
robust security framework that supports the full integration of
this technology in our aviation system.
Collaborating with our national defense, homeland security,
and law enforcement partners is not new to the FAA. Close
coordination with our partners to address the UAS security
challenge is a natural extension of these time-tested and well-
exercised relationships. We have been working together
successfully to address manned aircraft risks for decades. We
continue to work together to improve the government's ability
to respond to threats posed by both manned and unmanned
aircraft operations, but more must be done if we are to realize
the full benefits of safe and secure UAS integration.
Congress granted the Departments of Defense and Energy
counter-UAS authorities in December 2016. Recently the
Administration released a legislative proposal to give the
Departments of Homeland Security and Justice similar
authorities to protect against UAS threats to certain
facilities, assets, and operations critical to national
security. We support this phased approach, as well as the
inclusion of provisions in this Committee's proposal for robust
coordination and risk-based assessment which will ensure
aviation safety is not compromised.
The FAA's role in counter-UAS is to support our partners'
testing and eventual use of these systems while maintaining the
safety and overall efficiency of the NAS. The FAA is
responsible for balancing the requirements of our security
partners' protective missions with the need for operator
notification, airspace access, and airspace safety mitigations.
The FAA is currently working with the Department of Defense
and the Department of Energy to strike this balance as they
deploy counter-UAS technology at sensitive facilities in the
United States. We are full partners in their efforts to
implement these systems and have received the same commitment
from DHS and DOJ should they be granted counter-UAS authority.
In addition to working closely with our Federal partners,
FAA is progressing on a host of other actions that support both
safe and secure UAS integration, including publishing an
Advanced Notice of Proposed Rulemaking (ANPRM) to solicit
information on UAS security concerns impacting integration,
establishing remote identification requirements for UAS,
restricting UAS operations over certain Federal facilities, and
appropriately warning operators in proximity to these
restricted sites.
Being able to associate a drone in flight with the operator
on the ground is crucial to enabling more complex operations
and the ability of our law enforcement and national security
partners to identify and respond to security risks. Anonymous
operations in the national airspace system are inconsistent
with safe and secure integration.
But even as the FAA is working to establish remote ID
requirements, challenges remain. In particular, the current
exemption for model aircraft, Section 336 of the FAA's 2016
reauthorization, makes it nearly impossible for the FAA to
develop new regulatory approaches that facilitate safe and
secure UAS integration. This exemption promotes the
misperception by many recreational UAS operators that they are
not required to follow basic safety rules. To address this
challenge, a basic set of requirements, including registration,
remote identification, and observance of airspace restrictions,
must be applied to all UAS operators. This is essential to
ensuring clueless and careless operators fly safely. However,
mitigating criminal threats requires our security partners have
the counter-UAS authorities and tools central to today's
discussion.
There is no question that a robust security framework is
critical to advancing the Administration's goal of full UAS
integration. By enabling Federal security and law enforcement
agencies to detect and mitigate UAS threats, we will continue
to lead the world in UAS integration while offering the safest,
most efficient, and most secure airspace system in the world.
We thank the Committee for its leadership on this issue and
look forward to working together with you to balance safety and
innovation with security.
This concludes my statement. I am happy to answer any
questions.
Chairman Johnson. Thank you, Ms. Stubblefield.
It looks like we have the video ready to go, so if we can
just quick play that.
[Video played.]
Senator McCaskill. There it goes.
Chairman Johnson. It does not need narration.
So, again, that is an ISIS drone. They posted this on
YouTube. They let loose a grenade very accurately over the
target. So this is not a theoretical threat. This is a threat,
and we all know ISIS has their Inspire magazine and other ways
of communicating how to do these things.
As is kind of my tradition, I am going to turn the
questioning over to other Members to respect their time, but I
do want to quickly read a couple of sentences out of a letter I
just received today, June 6th, from the American Civil
Liberties Union (ACLU)\1\ who opposes this piece of
legislation. And I want the witnesses to keep that in mind and
address it, talk about your viewpoint versus the ACLU's
viewpoint.
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\1\ The letter referenced by Senator Johnson appears in the
Appendix on page 77.
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To quote: ``The National Defense Authorization Act for
Fiscal Year (FY) 2018 authorized the Department of Defense to
take action in cases where drones pose a threat to certain
assets and facilities. Given this, there are practical
questions regarding whether additional DHS or DOJ authority is
needed to protect against the safety threats that could be
posed by drones.''
Again, I really want you to concentrate, because I was
shocked by the fact that we do not have authority to counter
this. So if you can just kind of keep that in mind as we go
through questions by the Committee, and with that, I will turn
it over to Senator McCaskill.
Senator McCaskill. I will defer and allow other Members to
question first also.
Chairman Johnson. Then it would be Senator Lankford.
OPENING STATEMENT OF SENATOR LANKFORD
Senator Lankford. Thank you both for deferring to give us
time for questions. Thank you for your testimony.
Let me ask a couple of questions. For the FAA, current
restrictions right now on registration, a UAS has to be 50
pounds. Is that correct?
Ms. Stubblefield. It is greater than 0.55 pounds and less--
well, first, sir, all aircraft have to be registered.
Senator Lankford. Right.
Ms. Stubblefield. As it pertains to small UAS, if they are
greater than 0.55 pounds and less than 55 pounds, they can be
registered through the Web-based application. If they are
greater than--55 pounds or over, they have to participate in
our normal registration process that we use for manned
aircraft.
Senator Lankford. So when was that weight--the 55 pounds
max there, so there is a pretty big spectrum that has happened
in the development of the UAS over the past several years where
weight is coming down significantly. A 55-pound UAS is fairly
rare in the commercial field at this point. So is there a
reevaluation that is needed on that as far as the weight base?
Ms. Stubblefield. Thank you for that question, Senator. The
FAA's primary mission and focus being on safety, we evaluate
the weight and capabilities based on the potential safety risk
that they could pose. So as we look at expanding operations,
that is part of the discussion in terms of what are the
requirements to ensure safety. With the more weight that the
UAS has, the greater requirements for safety mitigations to
ensure that it does not pose a safety risk when flying.
Senator Lankford. But that is currently under reevaluation
or do you think that is not under reevaluation, that 55 is
considered the right weight and size?
Ms. Stubblefield. Senator, the 55-pound distinction is
largely around what we consider to be a small UAS, and for the
requirements around the Part 107 rule and the requirements that
are required for that versus if they are larger than 55 pounds,
then there are other certification and operator requirements
that are provided. As we move to more complex operations, the
requirements are going to be associated with the potential
safety risk that particular aircraft pose.
Senator Lankford. So is there a size limitation as well,
again, with composites and other things coming online now, that
they can have very significant size and still be under 55
pounds?
Ms. Stubblefield. No, sir, and the 55 pounds also includes
anything that is attached to or being carried by the UAS as
well.
Senator Lankford. All right. Let me ask of DHS on this, the
difficult question that civil libertarians are going to talk
about is who makes the decision, especially when you are
talking about an unmanned aerial system being seized at an
event, at a location. So the authorities that we are discussing
at this point, who would make the decision on when those
authorities go into place, what event, what location you would
not be allowed to use a UAS and what time, and then who would
grant the seizure authority of that, because that is a key
constitutional issue.
Mr. Glawe. Senator, thank you for the question. And you are
actually right, it is a key constitutional question on a Fourth
Amendment seizure, how that would work. The legislation allows
us to create the policies and procedures and tactics and help
develop the technical capability on how to deploy that. To my
colleague from the FBI and the national security events and how
DHS works that partnered with them, it is clear on that mission
in the lines of how we work that and provide that security.
This enabling of this new legislation, which is critical to the
safety of the homeland, will allow us to start developing those
programs and policies and technology on how to deploy it. But
the command and control is critical on that once a threat is
identified and a reaction is imminent.
I will let my Deputy General Counsel articulate the legal
aspect of that as well.
Senator Lankford. All right.
Ms. Chang. Yes, thank you. The decision as to where these
technologies will be deployed is going to be made at the
highest level. The Secretary and/or the Attorney General will
make the initial designation in consultation with the FAA under
the bill, and that will be done through a risk-based
assessment. So it will be a careful process where we see the
highest risk based on one of the--it will need to be connected
to one of the missions enumerated in the statute, and then the
actions will need to be taken under the bill necessary to
mitigate the threat. So it is a fairly limited scope.
And in terms of who will be making those decisions, the
personnel have to be with assigned duties of safety or security
or protection, so this will not be a broad sweeping
investigative tool. They will be protective.
Senator Lankford. Just walk me through this. You are trying
to make a decision on what is happening in Oklahoma, so there
is a Bedlam football game, and half the State is either
watching or at the game. Is that a national event or is that a
State responsibility to be able to monitor what is happening
around that event? Is it different if it is the Super Bowl
versus that if it a college football game in a State? When you
start talking about authorities and how you are going to be
able to monitor this and how you are going to track what
events, what locations, that decision has to be made, and we
have to provide some clarity to that.
Ms. Chang. Yes, sir, and currently we have a process in
place for handling security at those events, and this would
build upon that by adding the C-UAS authority. But,
essentially, the homeland security advisers of the States, if
it is a State event, will reach out and State and locals or
private sector will reach out through their homeland security
advisers. The process is in place. The lead is the Secret
Service, but the FBI is involved as well, and there is a
process for giving each event--if it is not the Super Bowl,
they will each have Special Event Assessment Rating (SEAR)
rating events, and based on the threat we will deploy resources
as necessary.
Senator Lankford. Right. Well, Scott can tell you the
Bedlam football game is bigger than the Super Bowl game anytime
on a college game. But when we talk about this local FBI
engagement, this becomes a key issue on the civil liberties
issue. I do not think any of us deny there is a real threat
here. The unmanned aerial system to me is kind of like the
Internet. It can be used for good or bad. We want to focus on
the good aspects of it and be able to broaden the capabilities.
But we also want to be aware it can be used for bad and how we
are trying to address this. The key issue that we have to
address is: What is a national focus? What is a State response
and a local focused on that?
Scott, how will the FBI be able to handle that as far as
that partnership and that relationship together?
Mr. Brunner. Yes, sir. Thank you, Senator, for the
question. So from a Federal perspective, we get together and
break all these events down into either National Special
Security Events (NSSEs), like the political conventions, like
the State of the Union address. Those are overseen by the
Federal entities. The majority of the other events we break
down into--they are called ``SEARs.'' That is everything from
something like the Bedlam football game to the Kentucky Derby
to other things that are of national importance but primarily
rest with the State and local authorities for responsibility.
This law would give us a unique ability to go in at the request
of the Governor or the Attorney General and provide the
resources that we have in the counter-UAS arena, working
extremely closely with our State and local partners, who
actually oversee the security of the event. So we would be in
addition to them. It would enable us to go in with the
technologies that we have provided by the authorities in this
bill and support them in protecting those types of events.
Senator Lankford. All right. Thank you.
Chairman Johnson. I think this would be a good point to
really clarify what authorities currently exist and what
authorities this bill actually grants. So do you have a list of
what those would be? Because, again, this is incredibly limited
authority. Currently the Department of Defense has incredibly
limited authority over their facilities. Again, whoever can
actually lay out here is the authority the Defense Department
has, this is the very limited authority prioritized that this
bill would grant. This does not give DHS the authority to knock
down drones flying around in your backyard. So who could do
that? Is that you, Ms. Chang?
Ms. Chang. Yes, sir, I can answer that. So right now, to
address in particular the ACLU's point about this not being
needed because DOD already has the authority, DOD, as you point
out, has very limited authority to protect certain critical
assets of theirs. It does not cover assets of the Department of
Homeland Security or the Department of Justice or these mass
gathering events. And so that is what--the Committee's bill
would add DHS and DOJ. It would allow us to cover what are
designated as covered facilities or assets by the Secretary or
the Attorney General through risk-based assessment, and those
could include, based on risk, these special events. But they
have to be tied to core missions for us. That is primarily the
Secret Service protecting the President and protectees. The
Coast Guard, CBP, DHS is primarily the Marshals and FBI. It
also limits how we can do it. It has to be necessary to
mitigate the threat, which is a pretty high bar. Generally our
use-of-force rules, and DOD is under these as well, operating
domestically, are reasonableness. And this would be a higher
bar with necessary to mitigate the threat.
And so once that threat is over, our authority ends. We
have the authority to disrupt that threat, get that drone down.
And then we have also robust protections, both front end and
back end, in the statute to limit to protect retention of that
data and also oversight of Congress as well as the Executive
Branch.
Chairman Johnson. And, by the way, State and local
authorities have no authority to do this, correct?
Ms. Chang. That is correct, sir.
Chairman Johnson. One of the concerns, I know, as we were
drafting the bill, was DHS did not want to assume protective
authority over everybody. You simply do not have the resources,
so, again, I cannot emphasize enough this is incredibly limited
authority. This is just a first step, table stakes authority,
with an awful lot of studying, a lot of cooperation with FAA in
terms of the complexity of the situation. Senator Hassan.
OPENING STATEMENT OF SENATOR HASSAN
Senator Hassan. Thank you, Mr. Chairman and Ranking Member
McCaskill, for holding this hearing, and thank you all for
being here.
Ms. Chang, I want to follow up a little bit on the
discussion we were just having because I would like to better
understand the Department's expectations for how this authority
is actually going to be implemented. As I understand it, the
bill broadly allows DHS or Justice Department personnel under
the circumstances you have described to shoot down a drone if
the drone threatens the airspace of a covered facility, and we
have a whole bunch of criteria about what makes a covered
facility.
However, State and local law enforcement will more likely
be the first responders to a potential drone threat. In the
event that the drone presents an imminent threat, the State and
local law enforcement personnel may not have time to wait
around for either DHS or the FBI to arrive on the scene to down
the drone. Consequently it is possible under the current draft
of the legislation for DHS--I guess the question is: Is it
possible for DHS or the Justice Department to confer
temporarily their authority to a State or local law enforcement
officer in order to neutralize an imminent threat?
Ms. Chang. Thank you, ma'am. This authority is for the
Federal Government, and it does provide us the ability to
assist our State and local partners. Right now, as the Chairman
has pointed out, we do not even have that. We are not able to
do anything to counter the threat, but----
Senator Hassan. I understand that. But what I am interested
in, I am a former Governor. I know what these relationships are
like, and I know people are stretched, especially at major
events. So, what I would ask is: How are we going to
practically do this if there is a threat? Suppose there is an
imminent threat. The only people there are State and local law
enforcement. What sort of validation, if we decided to have
some way that the DOJ or DHS could confer their authority on
State or local officials in the right circumstance, what kind
of validation would the State and local law enforcement
officers be required to provide to DHS or the FBI in order to
confer the authority? And should this be something that we
think about as a role for fusion centers in connecting DHS
personnel with the first responders who have to make really
fast decisions in the face of threats like this?
Mr. Glawe. Senator, thank you for that question. So the
fusion centers and the statutory requirement to share
intelligence, imminent intelligence and all intelligence,
resolves under me as the Under Secretary for Intelligence for
DHS.
Senator Hassan. Yes.
Mr. Glawe. The requirement that we are going to need to get
that information, tactical level, to the first responders and
local law enforcement is going to be critical. This bill is a
necessary first step to build the process and policies and
technology to develop that
capability with State and locals. As a former Houston police
officer--I started when I was 22--I absolutely understand that
local law enforcement is going to be the first line of defense.
I run a road race every year in Iowa--I am going to use an
example--and myself and my husband, who is an FBI agent, we
were there last year. There were 25,000 people in between two
buildings in Davenport, Iowa. A wonderful race. And I looked
up, and I said, ``There are six drones flying above us.'' And
we said, ``I hope they are friendlies,'' because we were
sitting ducks.
That was a SEAR 4 event. It got a SEAR rating from my
fusion center in Iowa, in partnership with the FBI, but it did
not raise to the level to have Federal support. That is where
we have to have the tactical level intelligence and the
countermeasures in place.
What I would say to the Committee as the head of
Intelligence for the Department, the sophisticated capability
by the terrorist networks and their encrypted communication
makes it very difficult to identify those imminent threats. We
have to have the capabilities deployed at these events and
ready to go if we feel that an adversarial drone is
approaching. Thank you, Senator.
Senator Hassan. Well, thank you, and I would look forward
to following up with you on this particular issue.
Under Secretary Glawe, I wanted to move on to another
issue. In addition to serving as the Under Secretary for
Intelligence and Analysis, do you also concurrently serve as
the Counterterrorism Coordinator for the Department of Homeland
Security?
Mr. Glawe. Yes, Senator.
Senator Hassan. As Counterterrorism Coordinator, are part
of your responsibilities to oversee the Department's efforts to
prevent, respond to, and mitigate terrorist threats to the
homeland?
Mr. Glawe. Yes, it is.
Senator Hassan. The Counterterrorism Coordinator is such a
critical position. Can you please outline for us what goals you
have accomplished at the Counterterrorism Coordinator over the
past year? What will be your goals for the Counterterrorism
Coordinator over the next year? And what metrics will you use
to measure your effectiveness?
Mr. Glawe. Thank you for that question. And since my
confirmation in August of last year--I have worked as a Special
Agent with the FBI, at the Director of National Intelligence
(DNI), and as the head of Customs and Border Protection. I was
uniquely postured to identify the challenges we have had at the
Department. so we have restructured into a counterterrorism
mission center approach, bringing all assets--I am head of
intelligence for all assets within the Department, Customs and
Border Protection, Coast Guard, Immigration and Customs
Enforcement (ICE), the Protection Division, as well as mine.
Aligning that so we have a common collection posture, so we see
the storyboard of the threats as they evolve, as well as
increasing my field resources--we had pulled back, and we did
not deploy enough resources in the fusion centers, and creating
a new structure so we get tactical level terrorism information
to the common users, especially at the ports of entry (POEs)
and the borders.
Senator Hassan. So I appreciate that. What I will follow up
with you on the record about is that is a lot of activity to
get yourselves ready to accomplish certain goals, and I am
interested in what goals were set, what has been accomplished,
so what the outcomes are, and what metrics you are using. I
have one more question, so I am going to move on to that, but
that is what I would like to follow up with you about.
Mr. Glawe. Senator, we will take that back for the record.
I would look forward to come back and have a further dialogue
regarding our restructuring and how we have put pursuit teams
and metrics associated with that.
Senator Hassan. All right. Thank you.
Another question for you, Under Secretary. Clearly. from
our classified briefing yesterday and today's discussion, we
know that drones can be used by terrorists to carry out
attacks. With that said, it is really important to make sure
that we are not confusing the symptoms with the disease. A
terrorist with a drone in the United States is clearly a
threat. But so are terrorists armed with a car, a bomb, a gun,
a pressure cooker, or box cutters. Indeed, any motivated
terrorist with a weapon on U.S. soil constitutes a threat to
the homeland.
While we must counter the tactics terrorists use to carry
out attacks against Americans, it is perhaps even more
important to try to stop terrorists from entering the United
States and to keep Americans from falling prey to the twisted
propaganda that radicalizes them into homegrown terrorists.
On the first point, at one time ISIS had as many as 5,000
recruits from Western countries, including many visa waiver
countries. What is your assessment of the number of foreign
fighters ISIS was able to recruit from Western countries? And
as part of your response, did all of these recruits die on the
battlefield? If not, what is DHS' strategy for countering ISIS
foreign fighters that may seek to travel back to the United
States?
Mr. Glawe. Senator, thank you for that question, and it is
a very diverse and fluid threat right now as the disbursement
of the fighters are now leaving Iraq and Syria and going
global. We have seen an amount of European foreign fighters and
U.S. foreign fighters that are still in Iraq and Syria. There
has been disbursement into North Africa, into Southeast Asia,
as well as Europe, as I mentioned.
We have a new U.N. Resolution, 2396, that requires the
sharing of Passenger name record (PNR) data to the United
States and to European countries and others that signed on. We
are developing programs through enhanced screening and vetting
in the National Vetting Center to identify those threats and to
work with our foreign partners to get that travel data,
especially foreign to foreign travel. But developing the
systems and the infrastructure to identify that threat globally
to prevent that coming into the United States is a priority for
the Secretary and for myself, as well as the intelligence
community (IC), as well as also the cargo and container
security. As we know with the Australia bomb plot, a
significant danger, and we have seen that consistently, the
threats to aviation continue to morph and expand exponentially,
and they are sophisticated. We are developing the programs and
infrastructure globally with foreign partners to collect that
data and to mitigate the threats.
Senator Hassan. Well, thank you. And I know we have gone
quite a bit over, so I thank the Chair for his indulgence. I
also will be following up on the homegrown piece of this and
what we are doing at a community level to make sure that we are
countering homegrown terrorism.
Thank you.
Mr. Glawe. Thank you, Senator.
Chairman Johnson. Senator Hassan, first of all, I
appreciate your questions, particularly when you started
talking about local enforcement of this. Again, for purposes of
this hearing, I really need to clarify how little authority
government at all levels has on this. So the fact of the matter
is when I saw the first draft of this bill, I thought, Is this
all? Is this really all we are doing? And I pushed my staff and
I pushed the Federal partners here to let us make this as
expansive as at least the discussion.
Now, in the end we pretty well pared it back to just the
initial first step because, again, we are going to have
pushback on this. But I think the answer to your question is
local authorities would have no authority. Unless DHS or a
Federal authority could get there, there is no authority to
knock these things down.
Senator Hassan. And, Mr. Chair, I understand that and I
appreciate very much why we are looking at this. What I want
people to remember is that just because we give a Federal
agency authority does not mean that operationally that is going
to result in the kind of action we need to actually take
something down. And, I also know from my local and State folks
how concerned they are that they may be presented with an
imminent threat that they will take action on because they are
public safety officers and they are going to protect the people
they are sworn to serve. But then what follows is a level of
liability for them which is very concerning.
Chairman Johnson. Under Title 18.
Senator Hassan. Yes.
Chairman Johnson. Precisely. So, again, I cannot overstate
the fact that this is such an important first step, but it is
just a minimal first step. It is just minimal. I mean, this is
not going to solve the problem. This puts us on the path to
begin to address the problem. So, again, I appreciate your
questions. It helped clarify that.
Ms. Stubblefield, I want to go back to registrations versus
the number of drones that have actually been purchased. It is
all well and good that FAA requires registration, but it does
not require registration at the point of purchase. And so any
kind of bad actor can purchase a drone and decide not to
register it, correct?
Ms. Stubblefield. That is correct, sir. The regulatory
structure and the registration process is made for the
compliant, those who want to follow the rules. Certainly we
have looked at the point of sale option when we were setting up
the registration process initially, and I would like to take
you back to that timeframe when we were doing this because I
think it helps inform the option and the direction that we took
at that time, which was in the middle of 2015; we were facing a
projection of significantly high percentage of UAS being under
the Christmas trees of folks in the United States, and we were
very concerned that we would have a lot of people operating in
the airspace who had no understanding of how to do that safely.
So we pulled together an aviation rulemaking committee that
was comprised of industry folks, as well as government
stakeholders, to look at what is the way that we can most
expeditiously register this new group of UAS operators that
will be coming into the airspace system. Point of sale was
looked at in that context. The concern with that was when
people purchase it, it does not necessarily mean they will be
the person operating it, and a lot of these were being given as
gifts so there was some concern about whether we would actually
be capturing the right group of folks.
There is also the concern about people who are ordering
them from overseas or are buying them off retail market and how
we would capture those folks. And then as we spoke to
retailers, they were very concerned about the congestion of
having to do that registration at point of sale. There was
quite a bit of infrastructure that would need to be built and
clearly articulated within the rule, all of which added up to
adding significant time to being able to put registration in
process.
Chairman Johnson. OK. I understand the complexity of it,
and, again, particularly for those small toy drones, if you can
consider any of them toys, in terms of threat potential. I
understand that. But when you start getting into these
agriculture use drones and we still do not require registration
at the point of purchase, I heard Senator McCaskill say 4
million drones. I heard you say we have registered a million of
them. That is a gap of 3 million. That is a significant
security risk from my standpoint.
So we can have all the registration rules in place, but we
know bad actors are not going to be following the rules. So I
do not get a great deal of comfort in terms of registration
rules. I will stop right there. Did you want to go before we--
--
Senator McCaskill. Sure.
Chairman Johnson. OK.
Senator McCaskill. I would like to spend a little bit of
time talking about counter-drone technology. I know that
Science and Technology (S&T) has been focusing on developing
and delivering some counter-drone capability for DHS. Keeping
in mind that this is not a classified setting, discuss what you
can about what its capabilities are, and whether the bill gives
you the authority to use what is being developed within DHS for
counter-drone operations?
Mr. Glawe. Senator, thank you for the question. The
counter-drug technology developments specifically on how we are
identifying the different threat vectors. Transnational
criminal organizations are incredibly sophisticated, operating
much like foreign intelligence services by State-sponsored
governments. They are incredibly capable. Specifically, Science
and Technology and the two main organizations that do
interdictions, Coast Guard and U.S. Customs and Border
Protection, have been increasing their capabilities to
specifically identify fentanyl. As you know, it is a tremendous
threat, and it is causing devastating effects to all of the
Senators' communities. It is devastating. With that regard,
they have made advances on how to detect that within cargos and
containers, and Kevin McAleenan, the Commissioner, has done a
fantastic job in leading that effort.
With regard to this legislation and the threat from UASs,
specifically Southern and Northern Border, it gives us the
opportunity in the Department of Homeland Security to develop
tactical techniques and policies and procedures to identify
those threats in a foreign country that are trying to come
inbound in the United States. It gives us the first start to do
that. But as you know, unmanned aerial systems can provide 3 to
5 pounds of payload of pure fentanyl, which is worth thousands
and thousands of dollars and can devastate States. It is
deadly. This is going to allow us to develop the policies and
technology to further that aggressively, because, in my
opinion, these sophisticated networks are going to morph and
have way outpaced our capabilities on the technology.
Senator McCaskill. You may have misunderstood my question.
I am obviously always interested in what we are doing to get
after the drugs, but I am interested in what we are doing
internally versus the commercial counter-UAS technologies. We
are aware that some of these companies are touting some pretty
amazing technological advances and claim to be able to address
the drone threat. And so I have two parts to this question. I
want to know what capabilities exist, within S&T through this
Theater Air Control Training Information Computer (TACTIC)
assessment that you all have done--and that is an acronym for
something long; somebody had to write an acronym--versus the
commercial technologies available. One of the big things that
has occurred, I am very grateful for, in DOD over the last few
years is them finally recognizing that sometimes off-the-shelf
technology is a much better deal for taxpayers and, frankly,
allows us to stay cutting-edge in a more flexible way than
investing in a huge, big project to do counter-drone technology
that is with request for proposal (RFPs) and changing
requirements. So, first I want you to compare and contrast
commercially available counter-drone technologies with what is
going on within DHS in the Division of S&T. Second, whether or
not any of these technologies are ready to be deployed and
whether they can be deployed in urban settings.
Mr. Glawe. So, Senator, I think regarding the surveillance
vehicles, I am assuming you were talking about, as far as what
would be flown by the Office of Air and Marine and how they
patrol specifically the border environment to look for
nefarious activity, that has been an evolving technology that
they have looked to advance. Specifically on the commercial use
and where they are looking at the testing and procurement, I
would have to get back with an answer for the record on the
specifics. I want to make sure I am accurate when we answer
your question because this is a very costly endeavor and the
technology advancements and the cost saving obviously have to
be balanced with what----
Senator McCaskill. Yes, and that is what I really want to
drill down on here. I really need you to get back to me on why
we are not buying it off the shelf. What is the reason? If
these technologies have been developed and are commercially
available, there needs to be a really good excuse why we are
not availing ourselves of that technology as opposed to trying
to duplicate it in a way that history has told over and over
and over again costs three times as much. It does not happen as
quickly, there are too many cooks in the kitchen, and we are
just not as nimble and flexible as we need to be. And in this
particular area, with technologies evolving as quickly as they
are, I just want to make sure that we are not missing the
opportunity to avail ourselves to the commercial technologies
that are available.
Mr. Glawe. Senator, we will take that back for an answer.
Senator McCaskill. Great.
And I really want to know also, when you come back with
that, how these technologies can be deployed in urban
environments. There is one situation where you can go into a
relatively rural area and do the kind of identification,
interdiction, and use counter-drone technologies very
effectively. Sometimes in an urban setting, it is a whole
different set of challenges, both from the flyable space to the
interference that there is in terms of the ability to locate
them, and obviously the techniques for bringing down are
challenged by an urban environment. So I think it is really
important that this Committee get a handle on what advancements
are being made--and all of you, feel free to weigh in on this,
what advancements are being made that would allow us to use
these technologies more effectively where it is likely this is
going to occur; that is, where bad actors could hope to inflict
mass casualty.
Mr. Glawe. Senator, using UASs for law enforcement purposes
to conduct surveillance on criminal suspects, terrorists,
foreign intelligence agents is going to be an absolute benefit
and how we develop those policies and procedures, I would
actually turn it over to the FBI, the Deputy Assistant
Director, maybe to touch on that from their use.
Mr. Brunner. Yes, Senator, I can speak from experience. I
have been in a number of meetings with the Department of
Defense, a number of conferences, and with our partners in the
industry. There are a significant number of counter-products
out there on the market today. The problem we face right now is
that we cannot legally use any of those domestically. That is
where this legislation comes into play. So the Department of
Defense is using some very significant tools overseas. Our
partners here within the counter-market are developing some
significant technologies that are potentially very useful to us
to protect the American public and to respect privacy and civil
liberties. But, again, we cannot use any of those right now.
Senator McCaskill. And our legislation would allow that?
Mr. Brunner. Yes, ma'am. It would go a long way in helping
us.
Senator McCaskill. Well, then I want to get a head start on
looking at commercially available, off-the-shelf technologies
so that we are not back here 5 years from now talking about the
400 million, the 500 million, the billion that was wasted in an
acquisition strategy that was never going to be nimble enough
to address the threat.
Thank you, Mr. Chairman.
Chairman Johnson. Senator Heitkamp.
OPENING STATEMENT OF SENATOR HEITKAMP
Senator Heitkamp. Thank you, Mr. Chairman. And thank you so
much for expediting this hearing. I think it is critical, as we
talked yesterday, that we have this conversation.
First off, I would just like to acknowledge that North
Dakota is very proud of the role that we play in developing
technology, and continuing, Senator Hoeven and I brag about
this all the time, and you can see our names are prominently
featured on this bill because we want this technology to be
safe. And so we have great opportunities to expand and to
develop what we need for border security, for homeland
security, right in North Dakota and right here. And so I just
want to submit for the record a statement by Nicholas Flom, who
is the executive director of the Northern Plains Unmanned
Aircraft Test Site System.\1\ Nick is a great leader on UAS,
both in North Dakota and the Nation, and he and the North
Dakota Test Site I think bring an important perspective on
counter-UAS and how to best pursue this initiative. And so----
---------------------------------------------------------------------------
\1\ The statement referenced by Senator Heitkamp appears in the
Appendix on page 75.
---------------------------------------------------------------------------
Chairman Johnson. Without objection.
Senator Heitkamp. Thank you, Mr. Chairman.
First off, it is always dangerous when you are reaching
back in the file banks of your memory, but there were companies
that developed these techniques overseas for the Department of
Defense that came back, and there is a great example in
Baltimore where a local agency deployed the same techniques and
the same equipment that was used internationally. I do not
know. Are you familiar with the Baltimore experience, any of
you?
[No response.]
Well, that is a problem, right? Because this is something I
know from listening to a podcast, but you guys should know it.
And they ran into a number of privacy problems, but I think it
was like a Radiolab podcast or maybe a Planet Money podcast,
but they talked about tracking the criminal element in the city
of Baltimore and using this technique and were able to
basically deploy resources almost immediately to conflict
points that were very helpful. And it goes to what Claire is
talking about, which is, how do we do this, even beyond
terrorism threats, even beyond mass casualty threats, these
techniques can be very helpful for pursuing safety within
communities themselves. And so I would recommend you guys all
get a hold of Baltimore--if it is not Baltimore--I remember it
is Baltimore, but get a hold of the other entities.
Mr. Brunner. Yes, Senator, we are aware of that. That is a
persistent surveillance component. It is slightly different
from the counter component that I was----
Senator Heitkamp. Right, but there is no reason why a
persistent could not actually catch a counter-terrorism threat
as well, right?
Mr. Brunner. I am not----
Senator Heitkamp. Given the right intel.
Mr. Brunner. Potentially, yes.
Senator Heitkamp. So I think that there is a great example
of a public safety utilization of this technology.
I want to continue the dialogue that Claire engaged you all
in, in terms of technology. I think that we feel sometimes that
we are always behind the eight ball; we are always trying to
catch up to what the bad guys are doing or catch up to what is
happening and understand the technology. How can we accelerate
the development of this technology, especially as it relates to
surveillance kind of moving forward? And what are you doing to
accelerate the development of this technology or evaluating
products, as Claire has talked about, off the shelf that are
already available? I would start with you, Mr. Glawe.
Mr. Glawe. Senator, thank you for the question. I think
this legislation allows us the first step to start developing
the lanes and the roads of what our authorities will be and how
we can deploy it within the homeland. That is going to be
unique from a law enforcement and how we use it and how we use
that policy and legal framework so when we have officers
deployed at the border or at a national security event, that we
have the parameters of what we can do and how we can deploy
countermeasures. I will turn it over to the Deputy Assistant
Director of the FBI, who is really the subject matter expert on
this and leads that component down at CIRG, for a little more
granularity on it.
Senator Heitkamp. Mr. Brunner.
Mr. Brunner. Yes, Senator, we are working extensively with
our private industry partners to evaluate what the market has
out there in technology, and we are actually preparing
ourselves for when the national airspace opens up, and I could
turn that over to Ms. Stubblefield in a moment about that. But
we want to be in a position to make the best use of this
technology as possible, so we are coordinating with our private
entity partners both on the operational surveillance side of
the house and on the counter-surveillance side of the house,
counter-UAS side of the house, in order to position ourselves
and to provide the industry with what we potentially believe we
might need to both surveil and counter.
Senator Heitkamp. One of the things that I would remind you
is that this is the Homeland Security Committee but also
Government Affairs, and we are charged with efficiencies, we
are charged with making sure that we are doing everything that
we can to make sure that we are not wasting taxpayer dollars,
that we are not re-creating the wheel when the wheel has
already been made available. And so I just want to reiterate
Claire's point, which is, let us not think that the public fisc
is open to every dollar that you think you may need. Let us try
and economize on this. Mr. Brunner.
Mr. Brunner. Yes, ma'am, there is a National Capital Region
group that gets together on the Federal level--it is chaired
primarily by DHS and DOD--that the Department of Justice is now
a partner to looking at exactly that. We all believe in this
technology. We all know that we are going to need certain
components of this technology. Let us be smart about it. Let us
do it together. Let us push all of our requirements out at one
time so that we do not waste the taxpayers' money.
Senator Heitkamp. Turning to Mr. Glawe, we are obviously
very interested in providing border security on this Committee.
I think that we now have gone through a Northern Border study,
we have gone through a Southern Border study. How engaged and
involved are these technologies in the evaluation of that? We
talk about a wall, but we can do a virtual wall if we do this
correctly. And so we are very interested in how these
technologies will be deployed at the border and whether you
believe that you are paying enough attention to the development
of these technologies as we look at border security strategies.
Mr. Glawe. Senator, thank you for the question. I had the
good fortune, when I was the head of Intelligence at U.S.
Customs and Border Protection, to actually help stand up the
Northern Border Coordination Center in Detroit and actually
brief you--I believe it was about 3 years ago.
Senator Heitkamp. I know.
Mr. Glawe. I am very familiar with the unique environment
of collection on the border using unmanned aerial vehicles, and
we have done a tremendous amount of testing on the Northern
Border. You are very familiar with the challenges with the
foliage compared to the Southern Border. We have partnered with
the Department of Defense and intelligence looking at
capabilities and what we can deploy in an unclassified and
classified meeting to look at the coherent change of where
those threats are. So if you are unlawfully entering and not
going through a port of entry and declaring it, you are
essentially illegally entering the United States.
How are we deploying assets on that target to identify what
that threat is? That is a layered approach with intelligence,
not just air assets but intelligence also in the rear law
enforcement and in U.S. intelligence community assets and how
we collect that. We are creating new systems in how to do that.
This legislation, which also involves a strong research and
development (R&D) and reporting requirements to you, will allow
us to show you that layered approach and how we are integrating
in that intelligence from a classified and unclassified
capability on the patrol aspect of it.
Senator Heitkamp. And I think highlighting, Mr. Chairman,
the importance of getting this legislation across the finish
line so we can get started. Thank you so much.
Chairman Johnson. Thank you. Senator Carper.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. About a Saturday ago, colleagues, I was at
the University of Delaware in the football stadium for
graduation, and Scott Brunner's name came to mind because if
you do a Google search on Scott Brunner, you will find he is
not just a top guy at the FBI. He was our starting quarterback
for 3 years.
Senator Hoeven. Did you graduate?
Senator Carper. He went on to play for the Giants and for
the Broncos.
Senator Hoeven. Governor, did you graduate?
Senator Carper. Several times. [Laughter.]
Yes, indeed.
Senator Heitkamp. Really?
Mr. Brunner. No, ma'am. That is not me. It is a different--
-- [Laughter.]
Senator Carper. But I thought about you when I was there
and today. So nice to see you all.
I am going to ask you to think about one question, and then
I will ask another one while you think about the one I am going
to ask in a minute. The one I am going to ask in a minute is:
Each of you, give us a question we ought to be asking that we
are not asking yet of you. All right? What should we be asking
that so far we have not asked? OK? Think about that.
Here is my question. Given the disparate roles and the
responsibilities spread across a bunch of different agencies, I
would just like to know what your thoughts are about the degree
of coordination and cooperation that are necessary for
successful counter-UAS operations. That would be my first
question, so let us just start with that. Ms. Stubblefield, do
you want to go first?
Ms. Stubblefield. Thank you, Senator. Both your questions
are excellent questions, but I will start with the second one
first.
The level of coordination is significant, and we certainly
appreciate that this Committee's proposal highlights the need
for robust coordination and a risk-based assessment. There are
a lot of counter-UAS systems out there, 235 systems available
from 155 vendors in 20 countries. There is a plethora of
options on the market.
Senator Carper. I am going to ask you to be succinct
because we are----
Ms. Stubblefield. Yes, sir.
Senator Carper. Thank you.
Ms. Stubblefield. However, they have not been tested in the
civil environment. Most of them are built on military
applications. Therefore, as we are implementing them in the
civil environment, as we have been doing with the Department of
Defense and Department of Energy, it is critical that we have
coordinated processes for notification and reporting for the
airspace flight restrictions and mechanisms necessary to ensure
we are using this in locations where compliant operators are
not operating, to include the spectrum analysis for the impacts
that they have on avionics and air navigation systems that are
critical to safety of flight. So that coordination, which we
have been in lockstep with DOD and DOE, is paramount in the
planning up to deployment, through deployment so that we can
determine what those impacts are and what mitigations may need
to be put in place, and then also post-deployment to understand
how the UAS that they are engaging are reacting, because the
different UAS platforms actually react differently to different
kinds of counter-UAS technology.
Senator Carper. Great. Thanks.
Same question, Mr. Brunner.
Mr. Brunner. Thank you, Senator.
Senator Carper. And be succinct and brief, please.
Mr. Brunner. Yes, sir. Cooperation is imperative in this. I
think this group that we have gotten together to work on this
legislation with you all exemplifies that, that we recognize
the necessity to work together and to cooperate. Yes, we do
have our own lanes and our mission sets to protect the American
people and to protect their civil liberties and their privacy.
But we also need to come together, and we do as this
legislation represents in a number of areas where we work
together. And that is not just for this Committee. It is the
FAA, it is the Federal Communication Commission (FCC), it is
the National Telecommunications and Information Administration
(NTIA), and then it is all of our State and local partners on
top of that. It is imperative that--we cannot do this alone. It
is a group effort.
Senator Carper. All right. Thanks.
Same question, Ms. Chang.
Ms. Chang. Thank you, Senator. The coordination is
extremely robust. I think my partner Ms. Stubblefield said it
best when we first started our efforts together, that we should
consider this a marriage not a date, and I can say from
experience I think I see----
Senator Carper. Do you say that?
Ms. Stubblefield. Every day.
Senator Carper. That is good. I have to use that.
[Laughter.]
Ms. Chang. The statute requires us to coordinate with the
Department of Transportation, with the Department of Justice,
not only in implementing and doing the risk-based assessment
and designating facilities, but also any implementation and
guidance that we would issue. And I just wanted to also
emphasize that the reason that coordination is so key, we need
this bill because right now our research and development is
illegal. We cannot even research this technology because it is
illegal, and, therefore, we are going to have to build on our
counterparts at DOD and build on their efforts in order to hit
the ground running if and when we get this authority.
Senator Carper. Thanks, Ms. Chang. Mr. Glawe.
Mr. Glawe. Senator, thank you for that question. I would
just echo my colleagues. The research and development, the
efficient aspect of developing that within the policies and
procedures that this legislation allows us to is critical. But
I would also foot stomp that we have to move with a sense of
urgency. This threat is upon us. It is already here.
Senator Carper. We have never had a witness' foot stomp
before.
Mr. Glawe. We have to move with a sense of urgency on this,
and it has to be developed quickly within the framework of the
legislation and reporting requirements back to you all. And
then on your follow up question, I will just say quickly--and I
think
this is going to echo Senator McCaskill's concerns, as well as
others'--have we gone far enough to allow information and
countermeasures to be shared with our State, local, and private
sector partners? I am worried about those large venue baseball
games, football games, running events which I attend that do
not raise to the level of Federal law enforcement, a SEAR
event, and the protections that come with it. So I think in
partnership as we move forward, as this first step, do we have
the authorities in place as we move out, as the policies and
procedures and tactical techniques are built around it.
Senator Carper. Good. Thank you.
Ms. Chang, what question should we be asking that has not
been asked?
Ms. Chang. Why do we need the broad categorical exemption
from Title 18 versus carving out individual sections from the
code?
Senator Carper. OK. Thank you. Mr. Brunner.
Mr. Brunner. Senator, my question would be: What are the
consequences if we do not take this first step?
Senator Carper. Ms. Stubblefield.
Ms. Stubblefield. Why is it that the phased approach is
really the most appropriate approach to ensuring that we do not
create a safety issue while we are trying to solve a security
problem?
Senator Carper. OK, good. I am going to be asking this
question for the record. I do not expect you to respond to it,
but the question I will ask for the record goes back to my
first question, and that would be: What can we do here in this
body, the Legislative Branch, to improve and beyond this
branch, working with you, what can we do to improve
coordination of counter-UAS activities across Federal agencies?
I will ask that for the record.
I have 6 seconds left, but the Chairman is not here. So I
will probably ask this one for the record as well.
Senator McCaskill [presiding]. You think I am a pushover,
don't you? [Laughter.]
Senator Carper. No one would ever suggest that, least of
all me.
I will ask this one for the record as well. Members of the
Committee have talked about this legislation being limited in
scope regarding authorities being granted. I am going to ask
you to share for the record, each of you, your thoughts about
potential next steps and what is needed as we move forward.
We thank you for being here today and thank you for your
service, and we welcome your presence today, both on and off
the gridiron. Thanks.
Senator McCaskill. Senator Hoeven.
OPENING STATEMENT OF SENATOR HOEVEN
Senator Hoeven. Thank you, Ranking Member.
To begin with, I want to highlight for the Members of the
Committee that the Director of the Northern Plains UAS Test
Site, our test site located in Grand Forks, North Dakota, the
Director, Nick Flom, submitted a short written statement for
the record for this hearing, and he talks about some of the
technical challenges and priorities related to development of
counter-UAS and strategies, and I would strongly encourage you
to read that testimony.
For Ms. Chang, you mentioned in your written statement that
Federal law complicates your ability to research, develop, and
test counter-UAS technologies. Can you describe the challenges
you face in developing and testing counter-UAS technologies and
provide examples of technology that would help you counter UAS
threats that you are not currently permitted to test and
evaluate? So things that you cannot do that you would like to
be able to do.
Ms. Chang. Thank you, Senator. There are several things
that we would like to be able to do that we cannot do
currently, and the technology is constantly evolving. But our
efforts right now, for example, to detect drones that could
pose a threat primarily rely on scanning the radio frequency
(RF) spectrum. That raises questions under the Wiretap Act and
the Pen/Trap Act for use as well as spending any money on
research or testing, because its use is illegal, so testing it
and acquiring it is illegal.
The same with any of the disruptive measures that we would
use, particularly jamming, raises questions not only under
those statutes, but also the Computer Fraud and Abuse Act,
potentially the Aircraft Sabotage Act, several others that have
been interpreted in new ways because of the development of
technology. And because the technology use is illegal, we are
not permitted under our rules to spend money to purchase
equipment that is illegal to use, and so we cannot test it.
Senator Hoeven. So you cannot test jamming?
Ms. Chang. I should say I am aware of only in like a
sterile environment we are allowed to test, but we are not
allowed to test where there could be any secondary
consequences, which is not very realistic if you plan to use
it, for example, in Manhattan.
Senator Hoeven. Well, of course. It is clearly something we
have to test and clearly something we have to figure out how we
can develop testing for, because, obviously, we are going to
need it.
Ms. Chang. Yes, sir.
Senator Hoeven. So that is a very good point, a very strong
point. Thank you.
Mr. Glawe, your written statement illustrates that we are
becoming aware of more and more cases where UASs are being used
for illegal purposes. As the commercial UAS industry grows,
what additional legal authorities or technical capabilities do
you need to track UAS air traffic and separate potential
threats from friendlies? How would you benefit from
requirements for UAS to identify itself or from the
establishment of unmanned traffic management (UTM), networks
that might highlight cooperative and noncooperative aircraft?
Mr. Glawe. Senator, from an investigative standpoint, if
you are working a national security investigation or a criminal
investigation, the legislation is critical to allow us the
procedures and policies and technical capability for
identification of those nefarious. This is going to have to be
a layered approach with our investigative capabilities which
currently exist in--our intelligence capabilities that
currently exist. It will be layered into the statutory
authorities on how we identify and disrupt threats. But due to
the nature of the evolving and the quickness of these threats,
this legislation is critically important for us to develop the
technical capabilities, as the Deputy General Counsel just
mentioned, in that environment of what we can do within the
authorities that you all will grant us if this legislation goes
forward, which we feel it must.
Senator Hoeven. So you think this will help get you where
you need to go in terms of--I mean, we are going to have to
have a system where you have sense and avoid and, UTM that
allows not only the sense and avoid but some ability to make
sure that we are detecting the threats.
Mr. Glawe. Senator, absolutely. As Chairman Johnson stated
in his opening remarks, this is a strong first step to allow us
the policies and procedures to layer it in with those
investigative authorities our law enforcement organizations
have, and if it is outside the United States, layered in with
the intelligence services and foreign partners of how we are
going to mitigate this threat. The threat is very broad,
permissive, and significant.
Senator Hoeven. Ms. Stubblefield, I am pleased to note from
your written statement that the FAA is prioritizing ways to
both remotely identify UAS aircraft and also development of the
UTM system.
Ms. Stubblefield. Yes.
Senator Hoeven. So both the systems and the technology,
again, that will sort out friendlies and threats. But you are
focused on the airspace 400 feet and below, it looks like, so
my question is: What about 400 feet and above? Are you looking
at that as well for any criminal or terrorist type--any kind of
threat activity?
Ms. Stubblefield. Thank you, Senator Hoeven, for
highlighting the remote identification requirement. From the
FAA's perspective, we would like to see that requirement for
all UAS. As we consider putting together the rulemaking, which
we are working on as aggressively as we can right now, we are
certainly looking at putting requirements on operators,
manufacturers, such that when these come out of the box, there
is a capability that is there, which is going to help
regardless of where UAS operate, whether it is 400 feet or
below or as we move into the middle or even high altitudes.
Those UAS that can function at, let us just say to segment it,
18,000 feet and above, so in Class A airspace, those are going
to be larger aircraft that will be certified. We will have
requirements in that airspace to be communicating with air
traffic control.
There is no doubt that we have challenges around the
detection of what are generally a low and slow radar cross-
section of UAS. However, those larger UAS, we certainly have a
much better capability in terms of detection as we stay down
into the lower altitudes and, again, not to provide too much
information about our security posture, but certainly we think
remote identification is going to be key because those who are
not cooperating in the environment that will hopefully, as our
partners derive the authority to be able to deploy detection,
they will stick out, and so we will know who is supposed to be
there part of, as you mentioned, the unmanned traffic
management, the suite of tools and capabilities that will go
with that, we will know who is authorized to be there, who
should be operating and is operating compliantly, and those who
are outside of that hopefully will be detected by the systems
that our partner security agencies will be able to field.
Senator Hoeven. I am out of time, but, again, I would ask
that all the witnesses please take a look at Nick Flom's
testimony. I think it is helpful in your endeavors.
Thank you.
Chairman Johnson. Thank you, Senator Hoeven.
Ms. Chang, can you describe the inhibitions of Title 18 to
non-lawyers? I am one of them. Just talk about why law
enforcement is going to be really constrained unless they get
this type of waiver.
Ms. Chang. Certainly, Senator. The primary concern is
technology is evolving so rapidly, as you pointed out, and the
law is just not keeping up right now. And so we had discussed
the detection measures that we try to use, which most of them
operate by scanning the RF spectrum. That is naturally going to
raise questions under the Wiretap Act that was written in the
1960s, the Pen/Trap Act from the 1980s. They just were not
initially written for this, and so what is considered an
electronic communication is arguably swept up here, but also
our other measures, any effort that we would take to safely
bring that device down could potentially raise questions under
a whole host of statutes. And it is changing every day. We
would not have originally thought that these UASs would be
considered--what used to be just model airplanes would be
considered aircraft under the Aircraft Sabotage Act and,
therefore, bringing it down if it causes damage could create
criminal liability for our officers. We would not have believed
even recently, until recently, that these would be guided by
satellites, implicating provisions about interfering with
satellites. And the problem is just changing every day.
And so I cannot say with confidence today how many of these
statutes could be implicated as this technology continues to
evolve.
Chairman Johnson. I think we are all concerned about civil
liberties. There is no doubt about that. But, for example,
every day law enforcement might be confronted with having to
disarm a criminal, correct? They do not need a warrant to take
away somebody's gun at that point in time. Why is this that
much different? I will go to you, Mr. Brunner.
Mr. Brunner. Well, Senator, from a non-lawyer perspective--
--
Chairman Johnson. We will switch over to Ms. Chang
afterwards, but somebody with boots on the ground.
Mr. Brunner. So the concern for the boots on the ground,
Senator, is the way that the Title 18 statute is written right
now and some of the other statutes. We are concerned that the
individual, the agents on the ground, the officers, however you
want to phrase it, would be liable by taking action against
these targets, which no one has authority to do right now. So
if they were to take action, there is the potential there that
the Department of Justice or State or local authorities could
bring----
Chairman Johnson. I understand, but the analogy really is
you have a potential threat now is a drone. You have
intelligence, actionable intelligence. You realize this is a
problem. First of all, it is temporary restricted airspace.
Nobody should be flying a drone. Practically, putting the law
aside, is there really a difference between law enforcement
disarming somebody without a search warrant or going through
any kind of court procedure versus law enforcement acting in
that capacity?
Mr. Brunner. The difference is on the capabilities that the
law enforcement officer or special agent has on hand to
mitigate that threat. So downing an aircraft by an agent on the
street or a police officer on the street is going to be
extremely difficult. So that is the hardest challenge right
now. If I am an officer or an agent on the street and I see a
threat, I am going to do whatever I can to mitigate that
threat, regardless of what the statute might say at that time,
if I feel like I am protecting others. But the issue really for
them is they do not have the capabilities nor do we right now
without this legislation to actually do that.
Chairman Johnson. So, again, I understand the capability.
Again, I am just trying to connect the dots in terms of an
analogy. We ought to give law enforcement the capability, just
as they have the capability of disarming somebody dangerous,
without going through a court procedure and getting a warrant,
they ought to have that same authority from my standpoint.
Ms. Chang, do you want to comment on this?
Ms. Chang. Yes, Senator, and I am glad you raised the
Fourth Amendment because the Fourth Amendment still applies,
and this statute does not change that. And so if, for example,
a police officer were breaking up a fight, they would be under
the Fourth Amendment. They would be using force. And it would
have to be reasonable under the Fourth Amendment. They would be
seizing potentially persons or property, and that would have to
meet the reasonableness standard under the circumstances.
This statute actually sets a higher bar in that not only
would we have to comply with the Fourth Amendment, but also
take actions only as necessary to mitigate the threat. And once
that threat is over, then our authority under this statute
would end. And, again, the normal rules would still apply.
Chairman Johnson. Some of the pushback we have gotten from
some of the other committees of jurisdiction has to do with the
risk-based assessment that is required under the statute. We
have left that basically to the agencies to determine what that
risk-based assessment would be. I think some of the other
committees might be looking for greater detail and more
prescriptive language in terms of what that risk assessment is.
Can you just address that issue?
Ms. Chang. Certainly. The reason that we believe that this
sets the appropriate balance, there are a number of constraints
in the statute governing how we have to coordinate and
oversight. But we believe that keeping a somewhat flexible
approach because of the developing threat is important. We will
be, of course, coordinating with our FAA partners, and every
step we take will be with them. But the threat is evolving so
quickly that if we are so carefully constrained in statute, we
have been asked, for example, if we should define ``threat'' in
the statute. I am only aware of one statute that does that.
That is the Cybersecurity Information Sharing Act (CISA) that
defines ``cybersecurity threat,'' but typically that is left to
the operators because we have the expertise, and like I said,
it is developing so fast. We do not want to have to be back
here asking Congress for a new law 6 months from now.
Chairman Johnson. Which kind of gets me, again, to the very
limited nature of this, because I think it is important to
pound this point home. This is limited to risk related to the
following missions: U.S. Coast Guard and U.S. Border Patrol in
terms of their security operations, including security of
facilities, aircraft, and vessels; to U.S. Secret Service
protection operations; to Federal Protective Services (FPS)
protection of DHS facilities; to U.S. Marshals and DOJ
protection of its facilities and court personnel; to the Bureau
of Prisons, protection of their high-risk facilities; then
security for special events, and there we are talking about
visits by the Pope or other special events that are going to be
assessed through this risk-based assessment; and then when a
State Governor or an Attorney General requests assistance. But,
again, the local authorities will have no authority whatsoever
to mitigate the threat. Then active Federal law enforcement
investigations, emergency responses, security operations
carried out by DHS and DOJ, and then just reacting to known
national security threats that could involve unlawful use of
drones. Again, this is a really narrow authorization.
Who would like to talk--again, to reinforce and clarify,
this is just a first step. Maybe, Ms. Stubblefield, you can
talk about the first-step nature of the authority given to the
Department of Defense, because in our briefing yesterday, it
really does sound like those agencies, you are working very
closely with them, working through the complexity of this,
understanding how difficult this is, but also we are just
taking the first steps down that path, even with DOD having
this authorization for, what, 2 years? So can you just talk
about that?
Ms. Stubblefield. Yes, sir, Mr. Chairman, and thank you.
The complexity, as you cited, of this type of situation is you
are taking technologies that have largely been used in conflict
zones and the military space and bringing them into the civil
environment. And because there have been so few agencies that
have the authority that DHS and DOJ are seeking here, it has
been extremely challenging for anyone, whether it is Federal,
State, or local, to do that testing in the civil airspace,
because the technologies that we have, by and large, do have
impacts on avionics and air navigation service systems. And so
we have been working very closely with DOD in the pre-
deployment phase. Part of that risk assessment is determined.
What is the airspace around that facility? What does the air
traffic look like? What is the appropriate technology? What
exactly in that space are you trying to protect? Is it a point
defense? Is it an area defense? All of those types of factors
go into determining how we appropriately scope any flight
restrictions, what the concept of operations (CONOPS) is for
the given agency to deploy that system, so that we can then
mitigate any of the spillover effects into the civil
environment.
As Mr. Brunner articulated earlier, the FCC and NTIA are
also involved in that, because those impacts can go beyond just
the aviation spectrum.
Chairman Johnson. So this has been so far about a 2-year
process.
Ms. Stubblefield. Yes, sir.
Chairman Johnson. And you are not at the endpoint, not by a
long stretch, right?
Ms. Stubblefield. As you said, sir, this is an incremental
phased approach. As the Department of Defense and the
Department of Energy understand what these technologies look
like to be deployed by their folks on the ground in the civil
environment, they are taking a very measured approach to that
as well, because they are also using facilities that have their
own constraints, whether they be a facility that has nuclear
weapons or other types of technologies and sensitive materials
that may react to the types of technologies they are looking to
use to counter. All of those things have to be weighed out, so
it is a very slow, methodical approach to ensure that when they
get to turning them on operationally, we have done all we can
to ensure we are not creating any safety impacts but are, in
fact, just focusing on taking down that security risk.
Chairman Johnson. And, again, to clarify and respond to the
letter I received from the ACLU, DOD only has authority around
a very limited number of its facilities, correct?
Ms. Stubblefield. That is correct, Senator.
Chairman Johnson. They have no authority tacked against all
the things I just detailed in terms of our bill.
Ms. Stubblefield. That is correct.
Chairman Johnson. The Coast Guard, Secret Service, U.S.
Marshals, Bureau of Prisons, special events, DOD has no
authority whatsoever.
Ms. Stubblefield. That is correct, sir.
Chairman Johnson. I think it is also important to point out
that we did draft this law to pretty well make the authority
identical to DOD so that different agencies now working in
cooperation are not inhibited by slightly different types of
authority which could overly complicate this, correct?
Ms. Stubblefield. Correct, sir. And it is that mirroring of
the coordination and the risk assessment in both of those
places as well as the other features that for the FAA who is
involved with everyone who is going to deploy this makes it for
us a more consistent process as well to ensure we are uniformly
looking at the impacts on the airspace and aviation safety.
Chairman Johnson. In yesterday's briefing, I think a good
line of questioning--I think it was Senator Harris who was
talking about, OK, if we have a local authority and they hear
and perceive a risk, where is the point of contact going to be?
And we are talking about a number of different agencies here in
the Federal Government that were providing this authority. Does
anybody have an opinion on where that point of contact should
be?
Mr. Glawe. Chairman Johnson, I think developing the
policies and procedures around the capability is going to be
critical. Under a national security event, we currently have
the Critical Incident Response Group along in partnership with
the DHS operational equities that are very clarified and
defined, very defined, as the Deputy Assistant Director from
the FBI will say. But when we are talking about protection of
critical infrastructure such as a petrochemical plant in
Houston or other critical infrastructure that this statute
would allow us to do risk assessments and see if there has to
be protection, that is where we are going to have to develop
other procedures so we get the intelligence to the operator to
make that decision to take whatever countermeasures would be
appropriate for that, and we are going to have to change the
structure of how we do business in this arena, and this
legislation is a key step to getting the policies, procedures,
and legal authorities wrapped around it so we can make those
decisions, because you are absolutely right, the decision to
actually action a UAS is going to be quick, dynamic, and the
threat is going to be evolving fast, and we are going to have
to be moving into that space very quickly.
Chairman Johnson. So it is just too soon in this process to
really start ferreting out points of contact, because it could
be points of contact based on the industry, based on the
location, and eventually filtering back to somebody. But you
have to set up that process.
Mr. Glawe. Chairman Johnson, you are absolutely right. When
we are talking about deploying some sort of a force or a
technical capability on an object, which the Deputy General
Counsel can explain more from the legal standpoint, we are
going to have to have very specific guidelines, procedures, in
how that is deployed, what authorities of what organizations
are there to deploy it--Coast Guard, Border Patrol, Office of
Air and Marine, the FBI, the Secret Service if it is at a
protectee's location. Defining that scope and spectrum based on
the technological capability is going to be a critical
component to that.
Chairman Johnson. I have only got one more question for Ms.
Stubblefield, but I am going to close this out by asking all of
you to respond: Is there anything that we have not talked about
that, as we are going through this, you have just been itching
to make the point and/or something that really needs to be
clarified?
But, first, Ms. Stubblefield, I am going back to
registration. Again, I think there is a huge gap there. It is,
by and large, voluntary. Correct? It might be required by law,
but it is not really required by law at the point of purchase.
First, correct me if I am wrong there. And, second, what are
the penalties if people do not register? And what is the
enforcement of it?
Ms. Stubblefield. Yes, sir, you are correct that we are
dependent upon people complying with the rules, to follow the
rules and register their aircraft before they operate them. But
that goes across all sectors of aviation, not just the unmanned
aircraft.
In terms of the penalties, yes, there are penalties, civil
penalties for failing to register aircraft, and I believe there
actually may be a criminal aspect to that as well. For the
FAA's part, responsible for the civil penalty, if we are made
aware that someone has operated an aircraft that is not
registered, we conduct an investigation and then determine
based on the circumstances whether that is appropriate for
enforcement and levying of civil penalties, which the FAA has
conducted approximately 73 enforcement cases at this point.
Chairman Johnson. So 73 out of about 4 million different
drones. In yesterday's briefing, we heard of thousands of
problems, correct? I mean per year, thousands of suspected
improper use of drones?
Ms. Stubblefield. And precisely to your point, Mr.
Chairman, that is why the FAA has focused firmly and quickly on
remote identification. That is going to enable us to identify a
drone that is operating with the operator or the owner and be
able to then follow up for education, for enforcement, for
support to our law enforcement colleagues to be able to
actually ascertain what was the intention and what, if any,
follow up action needs to be taken, be that, like I said,
education, enforcement, or criminal prosecution.
Chairman Johnson. Again, I am just trying to lay out the
reality. This is how many improper uses of drone we detect,
over how many years engaged in 73 enforcement actions. So there
is a huge gap between what the reality is and what the
vulnerability is, and what we really can do from the standpoint
of governmental authority to really address that fact.
Let me start with Mr. Glawe then. Again, anything that just
has to be said, needs to be clarified here?
Mr. Glawe. Chairman Johnson, no, I think we have covered
all the threat vectors. I would just say again this threat is
significant and it is imminent. It is upon us. Terrorist
organizations, foreign intelligence organizations,
transnational criminal organizations, criminal actors can use
this technology and are using this technology on the homeland
and abroad. This legislation is a very strong first step to get
the ball rolling on the policies, procedures, technical
capabilities, and legal authorities to allow law enforcement
officers in the United States to take the actions needed to
make the homeland safe.
Chairman Johnson. Strong but still minimal, correct? I
mean, this is not going overboard. This is just giving you
baseline capability that you need as that first step.
Mr. Glawe. It absolutely is. As a former law enforcement
officer, I think we are going to need to revisit this as we
know the vulnerabilities will change.
Chairman Johnson. I think there would probably be a lot
more, first, discussion. We need to really discuss the
complexity of this issue. Ms. Chang.
Ms. Chang. Mr. Chairman, the clarification that I would
like to make is about the application of the broad categorical
exemption for Title 18. We have been asked several times why we
cannot just carve out those statutes that I just listed and say
we are exempt from those versus the entire criminal code, and
there are three primary reasons for that. The first is the
certainty that we have discussed. If we do not have certainty,
we have no solution at all because our officers right now
cannot move forward, and this technology is just evolving so
fast. And that is why the Administration strongly prefers the
clear approach in this Committee's bill that is from the same
approach given to DOD and DOE in the NDAA. And the second is
fairness. We have been told repeatedly that DOD is somehow
different, and in their warfighting capacity, they are. But for
that authority, they did not need this NDAA authority. The NDAA
that we have been discussing, that piece gave them authority to
operate domestically, force protection under the Fourth
Amendment just like our folks. And if our front-line officers
in uniform and out of uniform are treated differently and given
less protection, that sends a message they are less valuable
than their DOD partners.
And the third is, as you point out, Mr. Chairman, the
interoperability. There was a news article this morning in
Reuters about a 2017 incident, an Army Black Hawk that a drone
collided with it, and this happened at an NSSE. This was a
National Security Special Event over the U.N. General Assembly.
In that instance, if we did not have the same authority and the
same legal regime as DOD, we would not have been able to work
together and coordinate like we do on NSSEs in other areas, and
so we need to be able to work together as one team.
Chairman Johnson. Those were excellent clarifications. Mr.
Brunner.
Mr. Brunner. Chairman, I want to start by thanking you very
much for holding this hearing today. The Department really
appreciates the ability to be here in front of you, so thank
you for that.
I also want to emphasize our commitment to implementing
this authority in an extremely vigorous manner with respect to
privacy and civil liberties. I want to make that point for the
record.
And then to a question you asked previously, where do we go
from here? We are in extensive conversations with our State and
local partners about how we can broaden this authority and how
we can bring others into the fold. And we talk to the National
Football League (NFL) and we talk to Major League Baseball, and
we talk to the Commercial Drone Alliance and the American
Modelers Association, just to make sure everybody is on board
of where we are going, what we are trying to do, and how we can
make this better as we progress.
So thank you again very much for the opportunity today.
Chairman Johnson. Well, thank you for your service. Ms.
Stubblefield.
Ms. Stubblefield. Again, thank you very much, Chairman, for
the opportunity to participate today. As one clarification, I
want it to be crystal clear, sir, that the FAA supports our
national security partners in DHS and the Department of Justice
gaining this authority. There is a lot to be learned about how
to properly use it in the national airspace system and in civil
environments, and this authority will give us the opportunity
to start to move farther down that road and hopefully provide a
road map ahead as we phased-approach move this authority
forward.
I would like to mention one thing, though, because there is
a concern about what are we doing for our State and local
colleagues. Remote identification will be very key to them. In
our aviation rulemaking committee, we brought in State and
local law enforcement, and they said, ``We need to be able to
find the guy who is operating that drone,'' because in many of
these situations it is impeding emergency response, police
activity, or response to an incident on the highway or
something of that nature, where time is of the essence to get
critical help into that area. And so that is why we are
focusing on remote identification.
The one place we have not talked about today--and you
talked about gaps that we have--it is the fact that,
unfortunately, right now we do not have the authority to
require things like remote identification and basic airspace
rules across the totality of all UAS operators. We have an
excellent community of aviation enthusiasts who operate models.
Unfortunately, we are in a very different place than where we
were in 2012 where we have a lot of people who are buying a
UAS, do not now understand that they are part of the national
airspace system and are injecting safety and security risk into
the system. And our inability to ensure that they understand
that they have to follow the rules, that nuance has created a
lack of compliance. And so that is a space where we still need
some assistance in being able to put those minimum requirements
across all operators in the national airspace system, and that
will also help with our security partners and their ability to
discriminate threat. The more people we can move into that
compliant category, the fewer folks that our security partners
have to worry about and be focused on.
Thank you, Mr. Chairman.
Chairman Johnson. Well, the purpose of this hearing, like
the purpose of just about every hearing of this Committee, is
the first step in solving a problem, the problem-solving
process, it is really gathering the information, identifying
the problem, admitting we have one. I think that has been the
problem, that we have not just collectively as a society
understood that, yes, these drones are great, there is so much
promise, and they can be a lot of fun, but they pose a real
risk, and our laws just have not kept up with that reality.
It is true that FAA does support this legislation, correct?
Go ahead.
Ms. Stubblefield. Absolutely, Chairman Johnson, it is
critical that our partners have the tools they need, because a
robust security framework is critical to moving forward with
all the promise that you described that UAS bring to our
economy and to public safety.
Chairman Johnson. Thank you all for your testimony, for
your service to this Nation. It would be helpful if, working
with your other committees of jurisdiction, if asked to brief
Committee Members, Chairmen, that you do so very quickly. We do
have a unique opportunity. I did not realize it happened so
quickly, but I am going to do everything I believe my Ranking
Member is on the same page; I think my cosponsors are as well--
about getting this attached to the NDAA so it can become law
and this first step can actually be initiated, because I think
it is just critical. Within the dysfunction that is the U.S.
Congress, I would hate to miss that opportunity, then try and
pass this in some way, shape, or form, because, again, we just
saw from the ACLU, there will be critics of this, I think
completely unjustifiable criticism of it, but this is a really
great opportunity. So anything you can do within your agencies
to help grease the skids for attachment to NDAA would be very
appreciated.
Again, thank you for your testimony, for your service. The
hearing record will remain open for 15 days, until June 21st at
5 p.m., for the submission of statements and questions for the
record. This hearing is adjourned.
[Whereupon, at 11:49 a.m., the Committee was adjourned.]
A P P E N D I X
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