The Preventing Emerging Threats Act of 2018 (codified at 6 U.S.C. § 124n) (“the Act”) authorizes the Department to engage in certain counter-UAS (“C-UAS”) activities that might otherwise violate relevant provisions of federal law, namely 49 U.S.C. § 46502 (aircraft piracy), 18 U.S.C. § 32 (destruction of aircraft), 18 U.S.C. § 1030 (computer fraud and abuse), 18 U.S.C. § 1367 (interference with the operation of a satellite), and chapters 119 (interception of communications) and 206 (pen registers and trap and trace devices) of Title 18. The Act authorizes such actions where taken to mitigate a credible threat posed by a UAS to a “covered facility or asset” designated by the Attorney General according to the process set out in the Act. See 6 U.S.C. § 124n (a)(1). The designated facility or asset must relate to one of the statutorily enumerated missions authorized to be conducted by the Department. Id. (k)(3). Moreover, the Act requires the Attorney General to issue guidance implementing the requirements of the Act. Id. (d)(1). The Attorney General’s Guidance regarding “Department Activities to Protect Certain Facilities or Assets from Unmanned Aircraft and Unmanned Aircraft Systems” (“the Guidance”) was approved on April 13, 2020, and is available at /media/1116911/dl?inline.

The Guidance governs all of the Department’s C-UAS activities authorized under the Act, instructing DOJ components on: (1) the processes and standards for seeking the Department’s approval for deploying protective measures; (2) the legal framework for exercising those measures; (3) requirements to protect privacy and civil liberties; and (4) other requirements, including the need for component-level policies, interagency and inter-departmental coordination, and procurement and training. The Department developed and coordinated the Guidance with the Department of Transportation, and the Guidance ensures coordination with the Federal Aviation Administration when any C-UAS action authorized to be taken under the Act might affect aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, and the use of the airspace.

Any C-UAS actions taken by DOJ components under the Act must be carried out consistent with the Act, the Guidance, and component-level policies and guidance.

[added April 2020]