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New law would give federal government the right to shoot down private drones inside U.S.

Buried in an FAA bill that comes to the House floor Wednesday is language that lets the FBI and DHS shoot down “credible threats.”
There are over one million drones registered with the FAA in the United States.John Locher / AP

WASHINGTON — The federal government may soon have the authority to shoot down private commercial drones flying inside the U.S.

The 1,200-page FAA Reauthorization Bill posted by the House early Saturday morning includes a section titled "Preventing Emerging Threats" that would give the Department of Homeland Security and FBI the right to track and down drones that they deem a "credible threat" to a "covered facility or asset."

The bill, which goes to the House floor Wednesday, also establishes a bipartisan Syria Study Group to provide the first comprehensive strategic review of U.S. policy in Syria.

In August, DHS Secretary Kirstjen Nielsen asked for the green light to down drones in a letter to the chairman of the House Homeland Security Committee, Rep. Michael McCaul, R.-Texas. She said federal law enforcement needed the authority to fight back against the growing threat from drones inside the U.S. "The threat is real," she wrote. "Commercially available drones can be employed by terrorists and criminals to drop explosive payloads, deliver harmful substances, disrupt communications, and conduct illicit surveillance."

"Our hands are tied when it comes to guarding Americans against these threats, and if we tried to, our officers and agents could be at risk of criminal liability for simply doing their jobs to protect the public," she wrote.

According to the bill, Nielsen and Attorney General Jeff Sessions, in coordination with Transportation Secretary Elaine Chao, would define what constitutes "credible threats," according to the text. A "covered facility or asset" is defined as something that shows a "high risk and potential target for unmanned aircraft activity."

But critics say the language in the bill doesn't define credible threats or areas where drones could be taken down, and that the federal government may now be able to circumvent current federal laws that limit surveillance.

Image: Secretary of Homeland Security Kirstjen Nielsen
Secretary of Homeland Security Kirstjen Nielsen addresses the Department of Homeland Security (DHS) National Cybersecurity Summit.Bebeto Matthews / AP

Under current Title 18 Wiretap laws, federal law enforcement officials cannot intercept communications without a warrant except in the case of an emergency, and even then they are required to ask the courts for approval after the fact.

The new legislation, however, would permit federal authorities to monitor and track the unmanned aircraft without prior consent, including by intercept or accessing other means of electronic communications used to control the drone.

The senior legislative counsel for the American Civil Liberties Union warns the proposed law would expand warrantless surveillance and could interfere with press freedom.

"These provisions give the government virtually carte blanche to surveil, seize, or even shoot a drone out of the sky — whether owned by journalists or commercial entities — with no oversight or due process. They grant new powers to the Justice Department and the Department of Homeland Security to spy on Americans without a warrant," Neema Singh Guliani said, adding, "Congress should remove these provisions from the bill."

A House Homeland Security Committee aide says lawmakers worked to ensure the bill wouldn't threaten freedoms of Americans. "We really are sensitive to these privacy concerns," the aide said, explaining that the intercept technology is only specific to drones and cannot be used to listen in on all electronic communications.

Image: Elaine Chao
Elaine Chao testifies before a Senate Commerce Science and Transportation Committee confirmation hearing on her nomination to be transportation secretary on Capitol Hill on January 11, 2017 in Washington.Carlos Barria / Reuters file

The bill includes guidelines on how long the federal government can keep any electronic data it collects and who it can share the data with, the aide said, adding that this is meant to be a temporary solution while the laws catch up with the skyrocketing use of drones. The bill includes a four-year sunset clause.

With more than one million drones now registered with the FAA in the U.S., laws surrounding the operation of the unmanned aircraft have struggled to keep up with use. Not only would the new law allow DHS and the FBI to seize or destroy drones, but they would also be able to disable them by hacking into them and taking control of their flight path.

The U.S. military has used this same technology overseas for years, according to defense officials. In some cases the U.S. military can tap into an enemy drone's frequency and take control of the aircraft, directing it away from U.S. troops and allies.

The Syria Study Group that the bill would establish would examine the current situation on the ground and "make recommendations on the military and diplomatic strategy" of the U.S. with respect to the war, including reviewing the current U.S. goals, impact on the region, and the desired end state, according to the text. It would be the government's most comprehensive look at the war since the U.S. got involved four years ago.

The Secretaries of Defense and State, and the Director of National Intelligence would all be directed to provide full and timely cooperation to the Group, and the U.S. Institute of Peace will support their efforts.

The 12 members of the group would be appointed by various Congressional leaders, and they would be required to provide a report to Congress and the Pentagon within 180 days of the bill's enactment. The comprehensive look at the war in Syria would also include assessments on foreign actors in the conflict, including both Russian and Syrian activities there.