[Senate Report 115-332]
[From the U.S. Government Publishing Office]
Calendar No. 564
115th Congress } { Report
SENATE
2d Session } { 115-332
_______________________________________________________________________
PREVENTING EMERGING THREATS
ACT OF 2018
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 2836
TO ASSIST THE DEPARTMENT OF HOMELAND SECURITY IN
PREVENTING EMERGING THREATS FROM UNMANNED AIRCRAFT AND VEHICLES, AND
FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
September 4, 2018.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
79-010 WASHINGTON : 2018
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, Professional Staff Member
Margaret E. Daum, Minority Staff Director
Charles A. Moskowitz, Minority Senior Legislative Counsel
Subhasri Ramanathan, Minority Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 564
115th Congress } { Report
SENATE
2d Session } { 115-332
======================================================================
PREVENTING EMERGING THREATS ACT OF 2018
_______
September 4, 2018.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 2836]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 2836) to assist the
Department of Homeland Security in preventing emerging threats
from unmanned aircraft and vehicles, and for other purposes,
having considered the same, reports favorably thereon with an
amendment in the nature of a substitute and recommends that the
bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................5
IV. Section-by-Section Analysis......................................6
V. Evaluation of Regulatory Impact..................................8
VI. Congressional Budget Office Cost Estimate........................8
VII. Changes in Existing Law Made by the Bill, as Reported............9
I. Purpose and Summary
S. 2836, the Preventing Emerging Threats Act of 2018,
provides authority for the Department of Homeland Security
(DHS) and the Department of Justice (DOJ) to protect certain
critical facilities and assets when there is a national
security risk to public safety posed by an unmanned aircraft
system (UAS). Additionally, the bill requires DHS to complete
two threat assessments: the first on critical infrastructure
and large domestic airports and existing Federal, state, and
local authorities to counter the threat of nefarious drones;
the second on how DHS can assist state and local law
enforcement in countering the threat of vehicular terrorism.
II. Background and the Need for Legislation
Extremists and criminals continue to develop and promote
the use of drone technology for illicit means.\1\ Terrorist
groups and criminal organizations can buy commercially-
available UAS to carry and drop explosive payloads, deliver
harmful and illegal substances, and conduct surveillance.\2\
Terrorist organizations promote the use of UAS to conduct
attacks in the U.S. and surveillance on potential targets. For
instance, Al-Qaeda in the Arabian Peninsula used their Inspire
magazine in May 2016 to encourage individuals to use UAS to
collect information about potential assassination attempts and
killings.\3\ In September 2011, Rezwan Ferdaus, a U.S. citizen,
was arrested for planning to attach explosives to a UAS and
attack the Pentagon and U.S. Capitol.\4\ Another potentially
dangerous incident occurred in 2017 when a UAS flew over the
San Francisco 49ers and Oakland Raiders National Football
League stadiums dropping leaflets and causing panic.\5\
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\1\U.S. Dep't of Homeland Sec., Illicit Threats from Unmanned
Aircraft Systems (UAS) (2018) (on file with S. Comm. on Homeland Sec. &
Gov't Affairs).
\2\Id.
\3\Id.
\4\Id.
\5\Id.
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The Federal Aviation Administration (FAA) places flight
restrictions in areas like the National Capitol Region,
football stadiums, and certain government facilities.\6\
However, neither the Federal Government nor state governments
have an enforcement mechanism to pursue those operating UAS
unlawfully.
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\6\14 C.F.R. Sec. Sec. 91.141, 91.145, 99.7 (2018).
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Federal law enforcement agencies, such as DHS and DOJ, are
prohibited from taking actions against UAS due to decades-old
statutes. Federal laws including the Wiretap Act of 1968\7\ and
the Computer Fraud and Abuse Act of 1986\8\ were enacted long
before UAS were widely available. These laws make it illegal to
intercept any wire, oral, or electronic communication, or to
access a computer without authorization, respectively, making
it imposing to use the electronic transmission to track down
the operator of the drone. Additionally, DHS and DOJ are
prevented from taking action against a rogue UAS due to the FAA
Modernization and Reform Act of 2012 that defines UAS as
aircraft.\9\ Therefore, UAS are subject to aircraft piracy laws
which make it illegal to seize or exercise control of an
aircraft.\10\ There are a number of other laws in Title 18 of
the United States Code (Title 18) that prevent law enforcement
from taking action against a malicious UAS.\11\
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\7\Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No.
90-351, title 3.
\8\18 U.S.C. Sec. 1030.
\9\49 U.S.C. Sec. 331.
\10\49 U.S.C. Sec. 46502.
\11\18 U.S.C. ch. 199, 206, Sec. Sec. 32, 1030, 1367.
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In the National Defense Authorization Act (NDAA) for Fiscal
Year 2017, Public Law 114-328, Congress authorized the
Department of Defense (DOD) to counter UAS for specific mission
sets related to the nuclear deterrence mission, the missile
defense mission, and the national security space mission of
DOD.\12\ The law gave DOD a complete waiver from criminal
penalties in Title 18 and the Aircraft Piracy Act\13\ to use
counter UAS technologies.\14\ A waiver of Title 18 provides the
ability to operate counter-UAS technology free from unintended
consequences. The bill also gave the Department of Energy (DOE)
the authority to use counter UAS technology to protect the
storage or use of special nuclear material owned by the United
States.\15\
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\12\National Defense Authorization Act, Pub. L. No. 114-328,
Sec. Sec. 1697, 3112, 130 Stat. 2000, 2639-2640, 2756 (2017).
\13\49 U.S.C. Sec. 46502 (2018).
\14\National Defense Authorization Act, Pub. L. No. 114-328,
Sec. Sec. 1697, 3112, 130 Stat. 2000, 2639-2640, 2756.
\15\Id.
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In the Fiscal Year 2018 NDAA, DOD received expanded
authorities to counter UAS.\16\ The law included the additional
following missions: assistance in protecting the President or
the Vice President; air defense of the United States; combat
support agencies; special operation activities; and the
production, storage, transportation, or de-commissioning of
high-yield explosives.\17\ However, the expanded authority only
extends to DOD personnel and does not afford any other
government agencies the ability to utilize counter-UAS
technology.
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\16\National Defense Authorization Act, Pub. L. No. 115-91,
Sec. 1692. (2018).
\17\Id.
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S. 2836 provides DHS and DOJ the authority to protect
certain facilities and assets to prevent the threat of a
malicious UAS attack. It is modeled after the existing DOD and
DOE authorities to ensure the agencies can effectively
coordinate and carry out joint mission operations. Like DOD and
DOE, the bill provides DHS and DOJ a waiver of Title 18 to
detect, track, disrupt, or mitigate a UAS when it poses a
security risk to public safety or national security.
The bill also authorizes DHS and DOJ to begin research and
development of counter-UAS technology. For DHS and DOJ to use
this authority, the Secretary of Homeland Security or the
Attorney General must identify and designate covered facilities
or assets within the United States that directly relate to
specific missions of DHS or DOJ. Those missions include
security operations by the United States Coast Guard and U.S.
Customs and Border Protection that include facilities,
aircraft, and vessels; protective operations by the United
States Secret Service; protection of facilities by the Federal
Protective Service and deemed to be high-risk or a potential
UAS target; personnel protection operations by the Federal
Bureau of Investigation; penal, detention, and corrections
operations conducted by the Federal Bureau of Prisons
considered to be high-risk or a potential target; protection of
buildings and grounds owned or operated by the Department of
Justice considered high-risk or a potential target; National
Special Security Events and Special Event Assessment Rating
events; upon the request of a state's governor or attorney
general to assist state, local, or tribal law enforcement in
protecting mass gatherings of people; active Federal law
enforcement investigations, emergency responses, or security
operations; and when DHS or DOJ has identified a known national
security threat involving UAS.
S. 2836 includes a number of important privacy and civil
liberties protections. The bill limits the interception of
communications only to what is necessary to mitigate the threat
of UAS and any criminal proceedings after the incident. The
interception of such data must be consistent with the Fourth
Amendment and all other laws that are already applicable.
Communications and data are only allowed to be retained for as
long as necessary, but in no case longer than 180 days, unless
the records need to be maintained for safety or security
functions of DHS or DOJ, or for law enforcement purposes.
Lastly, data and communications intercepted during the
mitigation of a UAS cannot be disclosed outside DHS or DOJ
unless used for safety or security reasons or to support a
criminal investigation.
The bill's authorities to counter UAS sunset after five
years so Congress can re-evaluate how the authorities are being
implemented. DHS, DOJ, and the Department of Transportation
(DOT) are also required to provide semiannual briefings to the
Committee on Homeland Security and Governmental Affairs, the
Committee on Commerce, Science, and Transportation, and the
Committee on the Judiciary in the Senate, and the Committee on
Homeland Security, the Committee on Transportation and
Infrastructure, the Committee on Energy and Commerce, and the
Committee on the Judiciary in the House of Representatives, and
to deliver budget related documents to congressional committees
at the time of fiscal year budget briefings.
The Committee held a hearing to consider S. 2836 in June
2018.\18\ Chairman Ron Johnson showed a video of an ISIS UAS
dropping an explosive device on an Iraqi counter-IED unit to
demonstrate the reality of how ISIS is currently using UAS to
deliver explosives to attack targets and the ease with which it
can do so. The Chairman stated, ``All too often we pass
reactive legislation in the wake of a terrorist attack or other
security incident. The purpose of this hearing is to
proactively address an emerging threat.''\19\ In agreement,
Ranking Member Claire McCaskill emphasized the need to get
ahead of the threat and stated, ``Terrorist organizations . . .
have used drones overseas, and we expect that terrorists are
interested in exploiting those same capabilities here in the
United States.''\20\ Witnesses from DHS, DOJ, and FAA testified
about the threat to the homeland, ways that agencies would
carry out the counter-UAS authority, and the necessity for a
legislative fix. In expressing the urgency to provide DHS and
DOJ with counter-UAS authority, David Glawe, Under Secretary
for Intelligence and Analysis at DHS stated, ``[t]he threat is
significant, it's imminent, and it is upon us.''\21\
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\18\Preventing Emerging Threats Act of 2018: Countering Malicious
Drones: Hearing on S. 2836 Before the S. Comm. On Homeland Sec. & Gov't
Affairs, 115th Cong. (2018) (opening statement of Sen. Ron Johnson,
Chairman, S. Comm. on Homeland Sec. & Gov't Affairs), available at
https://www.hsgac.senate.gov/hearings/s-2836-the-preventing-emerging-
threats-act-of-2018-countering-malicious-drones [hereinafter
``Preventing Emerging Threats Act of 2018: Countering Malicious Drones:
Hearing on S. 2836''].
\19\Id. (statement of Chairman Johnson).
\20\Id. (statement of Ranking Member McCaskill).
\21\Id. (testimony of David Glawe, Under Sec'y for Intelligence &
Analysis, Dep't of Homeland Sec.).
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In discussing how the authorities will be implemented,
Deputy General Counsel for DHS, Hayley Chang, testified,
``[t]he Secretary and/or the Attorney General will make the
initial designation in consultation with the FAA, under the
bill. It will be done through a risk-based assessment. So, it
will be a careful process where we see the highest risk . . .
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.''\22\
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\22\Id. (testimony of Hayley Chang, Deputy Gen. Counsel, Dep't of
Homeland Sec.).
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S. 2836 is the first step toward providing authority for
the Government to counter the threat of UAS. As Chairman
Johnson has stated, ``I can't overstate the fact that this is
such an important first step, but it is a minimal first step.
This is not going to solve the problem. This just put us on the
path to begin to address the problem.''\23\ To highlight the
work that has yet to be done to address the threat, the St.
Louis Cardinals submitted testimony that reviews the challenges
that owners and operators of stadiums face in ensuring that the
public is secure while attending games. S. 2836 lays the
predicate for necessary research, development, operational
testing and deployment of counter UAS systems that will
eventually help secure large venues and mass gatherings that do
not meet the National Special Security Events and Special Event
Assessment Rating events.
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\23\Id. (statement of Chairman Johnson).
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Finally, the bill also requires DHS to conduct two
assessments to further the agencies' and Congress'
understanding of emerging threats to our national security and
public safety. The first is to assess the threat of UAS to
critical infrastructure and large hub airports, and if any
additional research and development is needed to counter UAS.
The second assessment requires DHS to assess vehicular
terrorism to fully understand the threat in light of recent
attacks involving vehicles. It also requires DHS to look at
ways it can support local first responders to mitigate and
respond to an attack.
III. Legislative History
Chairman Johnson (R-WI) introduced S. 2836, the Preventing
Emerging Threats Act of 2018, on May 14, 2018, with Senators
McCaskill (R-MO), John Hoeven (R-ND), Heidi Heitkamp (D-ND),
and Tom Cotton (R-AR). The bill was referred to the Committee
on Homeland Security and Governmental Affairs. Senator Bill
Cassidy (R-LA) and Senator Doug Jones (D-AL) joined as
cosponsors on May 16, 2018, and Senator Marco Rubio (R-FL)
joined as a cosponsor on May 24, 2018.
The Committee considered S. 2836 at a business meeting on
June 13, 2018. During the business meeting, a substitute
amendment was offered by Chairman Johnson and accepted by
unanimous consent.
Two amendments by Senator Carper were offered and accepted
by voice vote. The first amendment added additional privacy and
civil liberties language to the bill. The second amendment
offered by Senator Carper required DHS and DOJ to consider
certain factors when defining a UAS threat. Senators present
for the vote on both amendments were Johnson, Portman,
Lankford, Enzi, McCaskill, Carper, Peters, Hassan, Harris, and
Jones.
The bill, as amended, was ordered reported favorably by
voice vote. Senators present for the vote were Johnson,
Portman, Lankford, Enzi, McCaskill, Carper, Peters, Hassan,
Harris, and Jones. Senator Harris was recorded as voting no for
the record.
Consistent with Committee Rule 11, the Committee reports
the bill with a technical amendment by mutual agreement of the
Chairman and Ranking Member.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
Section 1 gives the bill the short title of the
``Preventing Emerging Threats Act of 2018.''
Sec. 2. Protection of certain facilities and assets from unmanned
aircraft
Subsection (a) lays out the authority for DHS and DOJ to
use counter-UAS technology. It authorizes the agencies'
personnel to take action necessary to mitigate the threat of
UAS for the safety and security of a ``covered facility or
asset'' (which is defined later in the bill). This section
waives liability under Title 18 and section 46502 of title 49,
the Aircraft Piracy Act.
Subsection (b) describes the types of action that approved
personnel can take against a UAS that poses a security or
safety threat. Those actions include the ability to detect,
identify, monitor and track UAS, without prior consent; warn
the operator of the UAS; disrupt control of the UAS; seize or
confiscate the UAS; and use reasonable force to disable,
damage, or the destroy it if necessary. This section requires
that DHS and DOJ coordinate with the Department of
Transportation (DOT). It also authorizes DHS and DOJ to conduct
research and development of, and test, counter-UAS technology.
Subsection (c) specifies that UAS seized by DHS or DOJ can
be subject to forfeiture.
Subsection (d) requires that DHS and DOJ issue guidance and
regulations for their respective Department's use of this
authority. This section also requires that guidance by the
agencies be in coordination with DOT and the FAA whenever it
impacts aviation security and civilian aviation.
Subsection (e) mandates privacy protections in the guidance
and regulations issued by DHS and DOJ. This section reiterates
that all interception or acquisition of communications or data
be consistent with Fourth Amendment protections and applicable
Federal laws. This section also limits the keeping of any
records intercepted to no more than 180 days unless there is a
law enforcement or criminal nexus. Records may not be disclosed
outside of the respective Department unless it would support a
safety or security function of the respective Department, or
the mission of the Department of Defense or law enforcement.
Subsection (f) requires that DHS and DOJ identify funding
sources for the authorities provided in subsection (b) when
submitting their annual budget materials to Congress.
Subsection (g) requires DHS and DOJ to brief the
appropriate congressional committees of Congress every six
months for the five years after enactment of this bill. The
brief must include policies and procedures on limiting the
impact to the National Airspace System; a description of
instances when the given authorities are used; how the
departments have worked to inform the public of the given
authorities; and how DHS and DOJ have engaged with other
federal, State, and local law enforcement agencies with the
given authorities.
Subsection (h) states that this bill does not vest existing
authorities of the respective departments to any other
department.
Subsection (i) provides a sunset of five years after
enactment of the bill. The President may extend the authorities
for 180 days for national security reasons. The extension by
the President must come 45 days before the sunset.
Subsection (j) limits the counter-UAS authorities provided
to DHS and DOJ to those specifically provided for in the
legislation.
Subsection (k) provides definitions for a variety of terms
throughout the legislation. The appropriate congressional
committees in the legislation are defined as the Homeland
Security and Governmental Affairs Committee, the Commerce,
Science, and Technology Committee, and the Judiciary Committee
in the Senate; and the Homeland Security Committee, the
Transportation and Infrastructure Committee, the Energy and
Commerce Committee, and the Judiciary Committee of the House.
This bill defines a ``covered facility or asset'' as those
(1) within the United States; (2) that are identified by the
Secretary of Homeland Security or the Attorney General through
a risk-based assessment; and (3) that directly relate to one of
the following missions: US Coast Guard and US Border Patrol
security operations, including securing facilities, aircraft
and vessels; US Secret Service protection operations; Federal
Protective Service protection of DHS facilities; US Marshalls
and DOJ protection of facilities and court personnel; Bureau of
Prisons protection of high-risk facilities; Security for
Special Events; National Special Security Events designated by
the Secretary of Homeland Security; Special Event Assessment
Rating Events; when a state governor or attorney general
requests assistance for a mass gathering event that would not
otherwise fall into the security for special event category;
active Federal law enforcement investigations, emergency
responses, or security operations carried out by DHS or DOJ; or
reacting to a known national security threat that could involve
unlawful use of a UAS.
This bill defines personnel that may use the given
authority as officers and employees of DHS and DOJ. It also
authorizes contracted employees of DHS to use the authority in
accordance with regulations and guidance by DHS.
Subsection (l) requires DHS to issue an assessment on the
threat from UAS to critical infrastructure and large domestic
airports. The evaluation must include a look at current
authorities for Federal, state, local, and tribal law
enforcement. Additionally, the assessment will include current
resources available to private and state-owned critical
infrastructure and large domestic airports, as well as
additional authorities the Department may need in the future.
DHS is required to submit the assessment as an unclassified
report to Congress that may be accompanied by a separate
classified annex.
Sec. 3. Department of Homeland Security efforts to help protect
individuals from vehicular terrorism
This section requires DHS to perform an assessment on
actions DHS is taking to support first responders and the
private sector to prevent vehicular terrorist attacks.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 16, 2018.
Hon. Ron Johnson, Chairman,
Committee on Homeland Security and Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2836, the Preventing
Emerging Threats Act of 2018.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Keith Hall,
Director.
Enclosure.
S. 2836--Preventing Emerging Threats Act of 2018
S. 2836 would authorize the Department of Homeland Security
(DHS) and the Department of Justice (DOJ) to take certain
actions necessary to mitigate the threat to selected U.S.
facilities or assets posed by unmanned aircraft (drones). The
authority provided by the bill would expire five years after
enactment. S. 2836 also would direct DHS to prepare assessments
of the threats presented by unmanned aircraft systems and
vehicular terrorism.
Using information provided by DHS and DOJ, CBO estimates
that implementing S. 2836 would cost less than $500,000
annually, assuming the availability of appropriated funds. We
expect the departments would use existing resources, as needed,
to execute the new authorities provided by the bill. For
example, under S. 2836 both DHS and DOJ could monitor or track
an unmanned aircraft without the consent of the operators or
owners.
Enacting S. 2836 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting S. 2836 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
S. 2836 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman:
HOMELAND SECURITY ACT OF 2002
* * * * * * *
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION
* * * * * * *
Subtitle A--Information and Analysis and Infrastructure Protection;
Access to Information
* * * * * * *
SEC. 210G. PROTECTION OF CERTAIN FACILITIES AND ASSETS FROM UNMANNED
AIRCRAFT.
(a) Authority.--
(1) In general.--Notwithstanding section 46502 of
title 49, United States Code, or any provision of Title
18, United States Code, the Secretary and the Attorney
General may, for their respective Departments, take,
and may authorize personnel of the Department of
Homeland Security or the Department of Justice with
assigned duties that include safety, security, or
protection of personnel, facilities, or assets, to
take, such actions described in subsection (b)(1) that
are necessary to mitigate the threat (as defined by the
Secretary or the Attorney General, in consultation with
the Secretary of Transportation, in accordance with
paragraph (3)) that an unmanned aircraft system or
unmanned aircraft poses to the safety or security of a
covered facility or asset.
(2) Requirements.--In taking the actions described in
subsection (b)(1), the Secretary or the Attorney
General, as the case may be, shall--
(A) avoid infringement of the privacy and
civil liberties of the people of the United
States and the freedom of the press consistent
with the Federal law and the Constitution of
the United States, including with regard to the
testing of any equipment and the interception
or acquisition of unmanned aircraft or systems;
(B) limit the geographic reach and duration
of the actions to only those areas and
timeframes that are reasonably necessary to
address a reasonable threat; and
(C) use reasonable care not to interfere with
authorized or non-threatening manned or
unmanned aircraft, communications, equipment,
facilities or services.
(3) Threat defined.--In defining the term ``threat''
for purposes of carrying out paragraph (1), the
Secretary or the Attorney General, as the case may be,
shall take into account factors, including, but not
limited to, the potential for bodily harm or loss of
human life, the potential loss or compromise of
sensitive national security information, or the
potential severe economic damage resulting from the use
of an unauthorized unmanned aerial system in the
vicinity of a covered facility or asset.
(b) Actions Described.--
(1) In general.--The actions authorized in subsection
(a) are the following:
(A) Detect, identify, monitor, and track the
unmanned aircraft system or unmanned aircraft
without prior consent, including by means of
intercept or other access of a wire
communication, an oral communication, or an
electronic communication used to control the
unmanned aircraft system or unmanned aircraft.
(B) Warn the operator of the unmanned
aircraft system or unmanned aircraft, including
by passive or active, and direct or indirect
physical, electronic, radio, and
electromagnetic means.
(C) Disrupt control of the unmanned aircraft
system or unmanned aircraft, without prior
consent, including by disabling the unmanned
aircraft system or unmanned aircraft by
intercepting, interfering, or causing
interference with wire, oral, electronic, or
radio communications used to control the
unmanned aircraft system or unmanned aircraft.
(D) Seize or exercise control of the unmanned
aircraft system or unmanned aircraft.
(E) Seize or otherwise confiscate the
unmanned aircraft system or unmanned aircraft.
(F) Use reasonable force to disable, damage,
or destroy the unmanned aircraft system or
unmanned aircraft.
(2) Required coordination.--The Secretary and the
Attorney General shall develop for their respective
Departments the actions described in paragraph (1) in
coordination with the Secretary of Transportation.
(3) Research, testing, training, and evaluation.--The
Secretary and the Attorney General may conduct
research, testing, training on, and evaluation of any
equipment, including any electronic equipment, to
determine its capability and utility to enable any of
the actions described in paragraph (1).
(4) Coordination.--The Secretary shall coordinate
with the Administrator of the Federal Aviation
Administration when paragraph (3) might affect aviation
safety, civilian aviation, use of airspace, aerospace
operations, and aircraft airworthiness.
(c) Forfeiture.--Any unauthorized unmanned aircraft system
or unmanned aircraft described in subsection (a) that is seized
by the Secretary or the Attorney General is subject to
forfeiture to the United States.
(d) Regulations and Guidance.--
(1) In general.--The Secretary, the Attorney General,
and the Secretary of Transportation may prescribe
regulations and shall issue guidance in the respective
areas of each Secretary or the Attorney General to
carry out this section.
(2) Coordination.--
(A) Coordination with department of
transportation.--The Secretary and the Attorney
General shall coordinate the development of
their respective guidance under paragraph (1)
with the Secretary of Transportation.
(B) Effect on aviation safety.--The Secretary
and the Attorney General shall respectively
coordinate with the Secretary of Transportation
and the Administrator of the Federal Aviation
Administration before issuing any guidance, or
otherwise implementing this section, if such
guidance or implementation might affect
aviation safety, civilian aviation and
aerospace operations, aircraft airworthiness,
or the use of airspace.
(3) Risk-based assessment.--The guidance issued by
the Secretary and the Attorney General, respectively,
shall include criteria of the risk-based assessment
required under subsection (k)(3)(A) that includes an
evaluation of the potential impacts on the use of the
authorities granted in this section on the safety and
efficiency of the national airspace system, including
the ability to provide advance notice to aircraft
operators as appropriate, and the needs of law
enforcement agencies and national security.
(e) Privacy Protection.--In carrying out actions authorized
under subsection (b), the Secretary or the Attorney General, as
the case may be, shall ensure that--
(1) the interception or acquisition of, or access to,
communications to or from an unmanned aircraft system
under this section is conducted in a manner consistent
with the Fourth amendment to the Constitution of the
United States and applicable provision of Federal law;
(2) communication to or from an unmanned aircraft
system are intercepted, acquired, or accessed only to
the extent necessary to mitigate the reasonable threat
that an unmanned aircraft system or unmanned aircraft
poses to the safety or security of a covered facility
or asset, or to investigate or prosecute a threat, as
defined by the Secretary or the Attorney General,
respectively, under subsection (a)(1);
(3) records of such communications are maintained
only for as long as necessary, and in no event for more
than 180 days, unless the Secretary or the Attorney
General determine that maintenance of such records--
(A) is necessary to support one or more
safety or security functions of the Department
of Homeland Security or the Department of
Justice, respectively, or to investigate or
prosecute a threat, as defined by the Secretary
or the Attorney General, respectively, under
subsection (a)(1); or
(B) is required for a longer period to
support a civilian law enforcement agency or by
any other applicable statute or regulation; and
(4) such communications are not disclosed outside the
Department of Homeland Security or the Department of
Justice unless the disclosure--
(A) would fulfill a safety or security
function of the Department of Homeland Security
or the Department of Justice, respectively, or
to investigate or prosecute a threat, as
defined by the Secretary or the Attorney
General, respectively, under subsection (a)(1);
(B) would support the Department of Defense,
another civilian law enforcement agency, or the
activities of a regulatory agency of the
Federal Government in connection with a
criminal or civil investigation of, or any
regulatory, statutory, or other enforcement
action arising out of, an action described in
subsection (b)(1); or
(C) is otherwise required by law.
(f) Budget.--The Secretary and the Attorney General shall
submit to Congress, as a part of the homeland security or
justice budget materials for each fiscal year after fiscal year
2018, a consolidated funding display that identifies the
funding source and funding requirements for the actions
described in subsection (b)(1) within the Department of
Homeland Security or the Department of Justice. The funding
display shall be in unclassified form, but may contain a
classified annex.
(g) Semiannual Briefings.--
(1) In general.--On a semiannual basis during the 5-
year period beginning 6 months after the date of
enactment of this section, the Secretary and the
Attorney General shall, respectively, provide a
briefing to the appropriate congressional committees on
the activities carried out pursuant to this section.
(2) Requirement.--Each briefing required under
paragraph (1) shall be conducted jointly with the
Secretary of Transportation.
(3) Content.--Each briefing required under paragraph
(1) shall include--
(A) policies, programs, and procedures to
mitigate or eliminate impacts of such
activities to the National Airspace System;
(B) a description of instances where actions
described in subsection (b)(1) have been taken;
(C) a description of efforts to address
privacy, civil rights, and civil liberties
issues implicated by the actions allowed under
this section;
(D) how the Secretary and the Attorney
General have informed the public as to the
possible use of authorities under this section;
(E) a description of actions the Secretary
and the Attorney General have taken to inform
owners and operators of covered facilities of
their status under this section; and
(F) how the Secretary and the Attorney
General have engaged with Federal, State, and
local law enforcement agencies to implement and
use such authorities.
(4) Unclassified form.--Each briefing required under
paragraph (1) shall be in unclassified form, consistent
with the needs of law enforcement agencies and national
security, but may be accompanied by an additional
classified briefing.
(h) Rule of Construction.--Nothing in this section may be
construed to--
(1) vest in the Secretary or the Attorney General any
authority of the Secretary of Transportation or the
Administrator of the Federal Aviation Administration
under title 49, United States Code;
(2) vest in the Secretary of Transportation or the
Administrator of the Federal Aviation Administration
any authority of the Secretary or the Attorney General
under this title or title 14, United States Code;
(3) vest in the Secretary of Homeland Security any
authority of the Attorney General under this title; and
(4) vest in the Attorney General any authority of the
Secretary of Homeland Security under this title.
(i) Termination.--
(1) In general.--Except as provided in paragraph (2),
the authority to carry out this section with respect to
the covered facilities or assets shall terminate on the
date that is 5 years after the date of enactment of
this section.
(2) Extension.--The President may extend by 180 days
the termination date described in paragraph (1) if, not
later than 45 days before the termination date
described in paragraph (1), the President certifies to
Congress that such extension is in the national
security interest of the United States.
(j) Scope of Authority.--Nothing in this section shall be
construed to provide the Secretary or the Attorney General with
additional authorities beyond those described in subsections
(a), (b)(1), and (k)(3)(C)(iii).
(k) Definitions.--In this section:
(1) The term ``appropriate congressional
committees''' means--
(A) the Committee on Homeland Security and
Governmental Affairs, the Committee on
Commerce, Science, and Transportation, and the
Committee on the Judiciary of the Senate; and
(B) the Committee on Homeland Security, the
Committee on Transportation and Infrastructure,
the Committee on Energy and Commerce, and the
Committee on the Judiciary of the House of
Representatives.
(2) The term ``budget'', with respect to a fiscal
year, means the budget for that fiscal year that is
submitted to Congress by the President under section
1105(a) of title 31, United States Code.
(3) The term ``covered facility or asset'' means any
facility or asset that--
(A) is identified by the Secretary or the
Attorney General, in consultation with the
Secretary of Transportation with respect to
potentially impacted airspace, through a risk-
based assessment for purposes of this section;
(B) is located in the United States
(including the territories and possessions,
territorial seas, or navigable waters of the
United States); and
(C) directly relates to--
(i) a mission authorized to be
performed by the Department, consistent
with governing statutes, regulations,
and orders issued by the Secretary,
relating to--
(I) security operations by
the United States Coast Guard
and U.S. Customs and Border
Protection, including securing
facilities, aircraft, and
authorized vessels, whether
moored or underway;
(II) United States Secret
Service protection operations
pursuant to section 3056 and
3056A of Title 18, United
States Code; or
(III) protection of
facilities pursuant to section
1315 of title 40, United States
Code, considered to be high-
risk or assessed to be a
potential target for unlawful
unmanned aircraft activity;
(ii) a mission authorized to be
performed by the Department of Justice,
consistent with governing statutes,
regulations, and orders issued by the
Attorney General, relating to--
(I) personnel protection
operations by the Federal
Bureau of Investigation and the
United States Marshals Service,
including the protection of
Federal jurists, court
officers, witnesses, and other
persons in the interests of
justice, as specified in
section 566(e) of title 28,
United States Code;
(II) penal, detention, and
correctional operations
conducted by the Federal Bureau
of Prisons considered to be
high-risk or assessed to be a
potential target for unlawful
unmanned aircraft activity; or
(III) protection of the
buildings and grounds leased,
owned, or operated by or for
the Department of Justice
identified as essential to the
function of the Department of
Justice, and the provision of
security for Federal courts, as
specified in section 566(a) of
title 28, United States Code,
considered to be high-risk or
assessed to be a potential
target for unlawful unmanned
aircraft activity; and
(iii) a mission authorized to be
performed by the Department of Homeland
Security or the Department of Justice,
acting together or separately,
consistent with governing statutes,
regulations, and orders issued by the
Secretary or the Attorney General,
respectively, relating to--
(I) National Special Security
Events and Special Event
Assessment Rating events;
(II) upon the request of a
State's governor or attorney
general, providing support to
State, local, or tribal law
enforcement authorities to
ensure protection of people and
property at mass gatherings,
where appropriate and within
available resources;
(III) active Federal law
enforcement investigations,
emergency responses, or
security operations; or
(IV) in the event that either
the Department of Homeland
Security or the Department of
Justice has identified a
national security threat
against the United States and
the threat could involve
unlawful use of an unmanned
aircraft, responding to such
national security threat.
(4) The terms ``electronic communication'',
``intercept'', ``oral communication'', and ``wire
communication'' have the meanings given those terms in
section 2510 of Title 18, United States Code.
(5) The term ``homeland security or justice budget
materials'', with respect to a fiscal year, means the
materials submitted to Congress by the Secretary and
the Attorney General in support of the budget for that
fiscal year.
(6) For purposes of subsection (a), the term
``personnel'' means--
(A) officers and employees of the Department
of Homeland Security or the Department of
Justice; or
(B) individuals employed by contractors of
the Department of Homeland Security who are
subject to the supervision, control, or
direction of the Department and are assigned by
the Department to perform the duties described
in subsection (a) in accordance with
regulations or guidance established under
subsection (d).
(7) The terms ``unmanned aircraft'' and ``unmanned
aircraft system'' have the meanings given those terms
in section 331 of the FAA Modernization and Reform Act
of 2012 (49 U.S.C. 40101 note).
(l) Department of Homeland Security Assessment.--
(1) Report.--Not later than 1 year after the date of
the enactment of this section, the Secretary shall
conduct, in coordination with the Attorney General and
the Secretary of Transportation, and submit an
assessment to the appropriate congressional committees,
including--
(A) an evaluation of the threat from unmanned
aircraft systems to United States critical
infrastructure (as defined in this Act) and to
domestic large hub airports (as defined in
section 40102(a)(29) of title 49, United States
Code);
(B) an evaluation of current Federal and
State, local, or tribal law enforcement
authorities to counter the treat identified in
subparagraph (A);
(C) an evaluation of the knowledge of,
efficiency of, and effectiveness of current
procedures and resources available to owners of
critical infrastructure and domestic large hub
airports when they believe a threat from
unmanned aircraft systems is present and what
additional actions, if any, the Department
could implement under existing authorities to
assist these entities to counter the threat
identified in subparagraph (A);
(D) an assessment of what, if any, additional
authorities the Department needs to counter the
threat identified in subparagraph (A); and
(E) an assessment of what, if any, additional
research and development the Department needs
to counter the threat identified in
subparagraph (A).
(2) Unclassified form.--The report required under
paragraph (1) shall be submitted in unclassified form,
but may contain a classified annex.
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