Don't shoot down that drone!

Most Americans celebrated Independence Day with parades, backyard barbecues, and fireworks displays. Not Jimmy Causey. Causey, a South Carolina inmate serving a life sentence for kidnapping, celebrated our nation’s birthday by escaping from prison – again. As with his previous escape, Causey was apprehended three days later. Unlike his 2005 prison break, however, authorities believe this time Causey had help acquiring the wire cutters used in his getaway -- from a drone.

As the New York Times reported, “We 100 percent know a cellphone was used or multiple cellphones were used while he was incarcerated, and we believe a drone was used to fly in the tools that allowed him to escape,” Bryan Stirling, the director of the South Carolina Department of Corrections, said at a news conference on Friday.

This isn’t the first reported instance of a drone dropping contraband into a prison yard. State and federal correctional facilities across the country have been grappling with this aerial smuggling phenomenon for several years. The Washington Post reported in 2016 that “prison inmates, a remarkably ingenious bunch, are disrupting long-standing methods of smuggling drugs, porn and cellphones the same way online retailers hope to one day deliver socks and underwear to American homes — through the air, with drones.”

Drones are also interfering with restricted airspace above the White House and, more recently, above the Goodwin Fire burning near Prescott, Arizona, where air firefighting operations have been grounded twice due to meddling drones. This modern-day trespassing dilemma is not limited to prison yard contraband or drones hovering above forest fires – or your backyard. Homeland Security officials are now concerned that ISIS’ use of armed drones on the battlefield could be the next means of carrying out an attack on U.S. soil. And federal and state governments must grapple with drones that may fly over government facilities or interfere with commercial aircraft.

The FAA has promulgated regulations governing the operation of drones in commercial and restricted air spaces. But those regulations hit an enforcement snag in May when a Maryland federal court ruled the FAA lacks statutory authority to require hobbyists to register their drones. States are also getting into the drone regulatory mix. Last year, Arizona enacted a law prohibiting drone interference with emergency or law enforcement operations. So far, one of the drone operators who grounded Goodwin Fire operations has been charged under this new law.

But what offensive measures can be used to “take down” a drone invading private or protected spaces? Under what circumstances? And are those measures legal? The proliferation of commercial and hobbyist drones has generated a burgeoning industry in counter-drone technology. But private citizens, businesses, and governments may be violating federal and state law if they use counter-drone technology to jam a drone signal or pick up a gun to shoot it out of the sky.

You’d think a Secret Service sharpshooter standing atop the White House could shoot down a drone hovering overhead. Or that the "hot shot" teams battling nearly two dozen forest fires in Arizona could simply jam the signal of a trespassing drone and send it plummeting to the earth rather than suspend their firefighting operations.    

But you’d be wrong. Section 32 of Title 18, United States Code, makes is a felony punishable by up to twenty years in prison to set fire to, damage, destroy, disable or wreck any aircraft in the special aircraft jurisdiction of the United States (which pretty much applies to any aircraft in flight). The statute makes no distinction between manned and unmanned aircraft.

The legal restrictions on offensive drone measures don’t stop there. If a private citizen or a government official uses a counter-drone measure to electronically interfere with a drone, they may run afoul of the Federal Wiretap Act or the federal Pen Register Trap and Trace Device statute (and similar state laws), which prohibit the interception of electronic communications, a broadly-defined term, and the use of devices that record or decode signaling or other information associated with an electronic communication. And, depending on who you are and where you are, discharging a firearm at a drone – even a drone hovering above your property – may violate federal or state firearms laws.

The FY 2017 National Defense Authorization Act exempts certain DOD and DOE facilities and assets from the Title 18 criminal provisions that preclude offensive measures against drones. But this exemption does not extend to other federal facilities or state or private land.

Drone use is only going to increase. The FAA estimates that small, hobbyist drone purchases may grow from 1.9 million in 2016 to as many as 4.3 million by 2020. And the commercial use of drones is still in its infancy. As with so many technological advancements, the law has not kept pace. Congress, state legislatures, and regulatory agencies must now grapple with the public policy, privacy, and public safety implications of this increasingly prevalent technology.

In the meantime, don't shoot down that drone!

Caroline Lynch