Hey
@Chip. Did you see this Advisory from the FAA, DoT, DoJ, FCC, and DHS to LE about the detection of UAS?
This is dated August 2020 and makes many of the same legal claims as we have! I almost can’t believe it!
The way I read this the FAA alfederal government is essentially saying Remote ID is legally dubious at best. This is written during the period that they were finalizing the remote ID rules so we can prove by the FAAs own legal analysis that they know this rule is illegal.
Look at this little jewel the FAA gave us. This is a quote from the document above.
I. Federal Criminal Laws
Congress has
exclusively authorized the Departments of Defense, Energy, Justice, and Homeland Security to engage in limited UAS detection and mitigation activities to counter UAS presenting a credible threat to covered facilities or assets, notwithstanding certain otherwise potentially applicable federal criminal laws, including various laws relating to surveillance.1 In addition, the FAA has been expressly authorized to engage in limited testing activities notwithstanding certain federal criminal surveillance laws.
Because no other entities have been granted that authority, it is important that state, local, tribal and territorial (SLTT) and private sector entities without such statutory authority (including SLTT law enforcement organizations, SLTT governments, and owners and operators of critical infrastructure, stadiums, outdoor entertainment venues, airports, and other key sites) understand that federal laws may prevent, limit, or penalize the sale, possession, or use of UAS detection and mitigation capabilities.3
Capabilities for detecting and mitigating UAS may implicate federal criminal laws relating to surveillance, accessing or damaging computers, and damage to an aircraft. Below, the advisory sets out separately how detection and mitigation capabilities may implicate these laws.
A. Detection Capabilities
Systems that detect, monitor, or track UAS often rely on radio-frequency (RF), radar, electro-optical (EO), infrared (IR), or acoustic capabilities, or a combination thereof. These capabilities detect the physical presence of UAS or signals sent to or from the UAS. In general, whether a detection or tracking system implicates federal criminal surveillance laws, such as the Pen/Trap Statute and the Wiretap Act, depends on whether it captures, records, decodes, or intercepts, in whole or in part, electronic communications transmitted to and from a UAS and/or controller, and the type of communications involved. Detection systems that emit electromagnetic waves or pulses of sound or light that are reflected off an object and back to the detection system—such as radar, EO/IR, and acoustic systems—are less likely to pose concerns under federal criminal surveillance statutes. Such technology senses the sound or electromagnetic waves produced by or reflected from the UAS and does not capture, record, decode, or intercept electronic communications. However, the use of such systems must also comply with laws and regulations administered by the FCC and FAA, as discussed below.
By contrast, systems using RF capabilities to detect and track UAS by monitoring the communications passed between a UAS and its ground control station may implicate the Pen/Trap Statute and Wiretap Act.
• The Pen/Trap Statute, 18 U.S.C. §§ 3121-3127, criminalizes the “use” or “installation” of a “device” or “process” that “records,” “decodes,” or “captures” non-content4 dialing, routing, addressing, or signaling (“DRAS”) information. DRAS information is non-content information used to transmit or process communications; depending on the system, this could include device serial numbers, cell site information, media access control (MAC) addresses, the international mobile equipment identity (IMEI), or the international mobile subscriber identity (IMSI). Use or installation of a pen register or trap and trace device is prohibited, unless conducted pursuant to a court order or when a statutory exception applies.
With respect to the Pen/Trap Statute, the exceptions state that they are limited only to providers of wire or electronic communication services.”
