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The End of An Era of Air Piracy in America
In the end of an era, by this time next year state and local police across the United States might no longer qualify as air pirates if they take down small drones harassing citizens…
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Wait, What?
Did you know it is generally a federal crime to take down a drone in the United States of America?
We’ve talked a lot on the Motte about how dangerous and effective drones can be as a weapon of war, it’s been a significant theme of Ukraine War discussion for years, and I even got an AAQC for musing how drones may change the relationship of society with the conduct of war. It’s not exactly a secret around the world that drones are capable of a great deal of damage or danger, and that it’s hard on a technical and material level to stop drones.
It's much less common for people to know that it is actually illegal to try outside a few, previously non-scalable, contexts.
In the US, but also more broadly, there is a basic chain of legal logic that links this. To quote from the US interagency legal advisory just linked-
The term “aircraft” refers to “a civil, military or public contrivance invented, used, or designed to navigate, fly, or travel in the air.” 18 U.S.C. § 31(a)(1). This definition is consistent with the meaning of “aircraft” in 49 U.S.C. § 40102(a)(6). **In the FAA Reauthorization Act of 2018, Congress codified the term “unmanned aircraft” as “an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.” 49 U.S.C. § 44801(11).
Or put another way- in the eye of the law, drones are legally aircraft. This starts to cause complications if / when you have laws relating to aircraft that were created with only big, manned aircraft in mind. Laws like-
The Aircraft Sabotage Act, 18 U.S.C. § 32(a), criminalizes certain destructive actions with respect to “aircraft,” including damaging, destroying, or disabling those aircraft.
Or-
The Aircraft Piracy Act, 49 U.S.C. § 46502, criminalizes the act of seizing or exercising control of an “aircraft” with “wrongful intent.” An intent to seize or exercise control of an aircraft without the legal authorization to do so could involve wrongful intent.
So, hypothetically, if you saw a drone hovering dangerously near, or even outright harassing, some people and you threw a blanket over it to take control of it… congratulations, you are an air pirate. And a criminal saboteur. Because if drones are legally aircraft…
But it’s not just aircraft laws either. Most drones are remote controlled by computers, or even cell phones. And many drone detection / mitigation systems go after those systems, which can put them in violation of communication and privacy laws like-
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).
The Wiretap Act (also known as Title III), 18 U.S.C. §§ 2510 et seq., prohibits, among other things, “intentionally intercept[ing]” the content of “any . . . electronic communication[,]” unless it is conducted pursuant to a court order or a statutory exception applies. An “electronic communication” is defined, with certain exceptions, as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce.”
Were these laws written with things other than drones in mind? Yes. Have they been updated since the advent of small commercial drones? In many cases, no. Are they still on the books and thus still valid? Again, yes.
These are American laws, and they have their own nuances and exceptions, but they tend to have their foreign equivalents and are emblematic of common policy challenges across the world. Many of the means and measures that would be used to counter drones are prohibited to the general public, and for good reasons. A weapon that can shoot a drone out of the sky can, by its nature, shoot other aircraft. A detection device that can collect and analyst drone remote controls can collect the same sort of signals from other measures.
So, if taking down drones is super illegal, how does any state do it without throwing their hands up and accepting anarchy?
Simple- you give select agencies the authority to ignore the general law.
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Counter-Drone Policy In A Nutshell: If It Not Permitted, It Is Forbidden
The nature of national laws is the same authorities who make the laws can give parts of the government the authority to ignore them. These exceptions, typically known as authorities, can be broad or narrow.
For example, in the US example, the interagency legal advisory previously noted had this to say as to the state of the law in 2020-
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. 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. 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.
In the Department of Defense, that authority can be found in Title 10, section 130i, which begins as-
§130i. Protection of certain facilities and assets from unmanned aircraft
(a) Authority.-Notwithstanding section 46502 of title 49, or any provision of title 18, the Secretary of Defense may take, and may authorize members of the armed forces and officers and civilian employees of the Department of Defense 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 of Defense, in consultation with the Secretary of Transportation) that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset.
(b) Actions Described.-(1) The actions described in this paragraph 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.
With a fair bit more described if you care.
This level of description is needed because this language is precisely what protects the American military service members from, say, being sued by a private drone operator for shooting a drone that ‘accidentally’ flew over an American installation, or for violating the civil liberties for unreasonable search and seizure if they compromise a drone signal. But note in turn the restrictions on this authority. The Secretary of Defense may only “authorize members of the armed forces… with assigned duties,” and only in protection of a “covered facility or asset.”
What is a covered asset?
(3) The term "covered facility or asset" means any facility or asset that- (A) is identified by the Secretary of Defense, 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 of the United States); and (C) directly relates to the missions of the Department of Defense pertaining to- (specific examples)
So, things the military and FAA agree upon, in the United States, directly affecting the military?
Note the sort of things that are NOT covered? Like, protection of public events? Or countering narco-drones. Or commercial airports. Or nuclear facilities.
Actually, that last one is reserved for the Department of Energy, not Defense. But this brings a point- different agencies are authorized different exemptions of varying scope. In a country like the US, even the US military- which is the part of the government with the most overseas experience with dealing with drones- has a relatively constrained role inside the US.
This is a policy challenge that generalizes. While different states have different laws- or in some cases no laws for drones given how new the policy field is- they all tend to have their limits. Even in countries in a state of war, like Russia or Ukraine, they can generally track their military-centric counter-drone measures to an authority authorizing the military to take whatever actions deemed necessary.
But laws for war are not the same thing as a competent domestic policy. In the front lines of the Ukraine War, any unidentified drone that isn’t yours might as well be assumed hostile. This still leads to a lot of friendly fire concerns You can’t do the same for any given drone in a country with hundreds of thousands or millions of legal drones. Setting aside the injustice of it, just the financial-industrial cost of trying to take down so many drones could bankrupt a country. And even if you can, or just want to spread ‘cheap’ countermeasures …
This principle of providing legal authorities isn’t just a western democracy phenomenon, but applies across the spectrum of governments. Even if you are the most authoritarian, civil rights-disregarding, tyrannical state on the planet… you still wouldn’t want to share counter-drone capabilities too broadly. Any organization that can collect and process so much information on drone signals has capabilities comparable to traditional spy organizations. Any security organization that can destroy, or hijack and control, drones at will, could use those capabilities against the government. Giving everyone ‘robust’ counter-drone capabilities is giving everyone (some) of the pre-requisites for throwing a coup.
And that’s without (literally) shooting down your share of a global commercial drone market valued in the 10s of billions of USD. Commercial drones have uses in surveying, infrastructure maintenance, farming, last-mile delivery, and many more things. The US alone has over 800,000 registered drones already, with many more expected.
Thus, the counter-drone policy challenge. How do you craft the laws and develop the policies that enable the state to effectively counter unmanned aerial systems?
Historically, and insufficiently, the global trend is ‘defer to the military.’
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The History of Counter-Drone Policy as Military Policy
If you define a drone as simply an unmanned aircraft, then counter-drone policy is as old as weaponized balloons. Incendiary balloons were developed in the late 18th and early 19th century. In 1849, the Austrians besieging Venice attempted to use such balloons to set the city ablaze. At this time, there wasn’t much of a policy a state could pursue to counter such a threat beyond policies of war or peace.
The first ‘modern’ drones as an unmanned but remote controlled aircraft emerged in WW1, with the British 1917 Aerial Target, a radio-controlled aircraft. The Aerial Target was intended to actually fly into German zeppelin-bombers, making it an anti-air drone. An American parallel, the Kettering Bug, was an experimental ‘aerial torpedo’, aka kamikaze drone, for attacking ground targets. While neither developed system was actually employed in WW1, these cutting-edge secret technologies were the purview of the greatest of powers. Counter-drone policy, in turn, was a subset of great power military competition.
This exclusivity diminished during the Cold War. As technology developed to allow for reconnaissance drones and electronic warfare capabilities in the 1960s, these technologies also proliferated with Cold War patronage and partner relationships. In 1973 during the Yom Kipper War, Israel would use both recon and EW drones. Counter-drone policy had devolved from great power competition to an aspect of conventional military conflict between even non-great powers.
This military exclusivity was dashed by the end of the cold war and the advent of commercial satellite and cellular network communications. When the US opened up the US military Global Positioning Satellite network to global airlines in 1983 following the Korean Airlines Flight 007 disaster, it did not initially provide full capability. There was a policy of selective availability to globally degrade ‘civilian’ GPS signal. However, the Clinton Administration in 1996 made it US policy to provide (free) GPS access and facilitate integration into civilian and commercial applications, and in 2000 removed the selective availability policy. Add in the proliferation of video-sharing technologies, which allow first-person-view in addition to global remote control, and gradually global markets had access to the same fundamental technologies as those behind the (in)famous predator drones. Or in other words- after about a century of being a military policy issue, in the early 2000s drones began to emerge as a commercial-regulatory issue.
Global civilian drone policy, aka drone regulations, started in the 2000s, first slowly and then gradually picking up pace in the 2010s. In 2002 the UK Civil Aviation Authority was among the first national entities to issue (nonbinding) policy guidance for drone users. By 2006, the US Federal Aviation Administration issued its first airworthiness certificate to a drone, as the first step in commercial drone regulation. The US passed the FAA Reform Act of 2012, mandating the integration of private and commercial drones into public airspace. Various other global actors followed suit,, with some countries trying to model after early regs, and some taking a wait-and-see approach to figuring out what worked.
And then the Fire Nation attacked ISIS became the first high-profile user of weaponized commercial-off-the-shelf (COTS) small drones.
ISIS was not the first user of COTS small drones. The first recorded combat casualties from a weaponized COTS were two Kurish soldiers and two French SOF Commandoes (pg. 109) in Syria by an unknown force. On page 12 of this CIS report on countering small UAS, or c-sUAS, the first identified organization to use militarized s-UAS at scale was the Yemeni Houthis. When the Houth rebellion in Yemen began in 2016 the Houthis received significant Iranian support in the form of drones. Many of these were ‘military-standard’ drones, but the Houthis have a reputation for modifying on their own, and at least some reports of modifying COTS drones.
ISIS was, however, the biggest and most disruptive early adapter of small drones, and made a point of propagandizing it. Part of this was that ISIS lacked a state patron for drones like the Houthis, and so had to make do. But part of this was that [early ISIS recruited heavily from the post-Saddam Baathist party, which already had significant technical expertise from when it ran Iraq, and had leveled up its improvisation and adaptability skills during the Iraq civil war when Sunni Baathists fought both Americans (who imposed de-Baathification policies) and Shia (who, among other things, were settling scores). In January 2017, after the rise of ISIS but before its major setbacks, ISIS released propaganda claiming 20 drone strikes.
This led to the (re)militarization of US counter-small drone, or c-sUAS, policy. The United States Central Command (CENTCOM), the military command responsible for the Middle East, noted in its March 2017 posture statement that it was initiating an interagency Joint Urgent Operational Needs (JUON) process to develop c-UAS capabilities.
Why is this significant?
A JUON is how the US military self-initiates new programs and investments without waiting for Congressional deliberation. (Or rather- Congress permits the US DoD a certain amount of leeway to start first, and ask for more permissions later.) Urgent Operational Needs are-
Capability requirements identified as impacting an ongoing or anticipated contingency operation. If left unfulfilled, UONs result in capability gaps potentially resulting in loss of life or critical mission failure.
A Joint UON, or JUON, is a UON that are identified by a Combatant Command Commander (i.e. CENTCOM’s Commanding General), or the Chairman / Vice Chairman of the Joint Chiefs of Staff (i.e. the military head of the Pentagon), as inherently joint and impacting an ongoing contingency operation. All JUONs are validated by the Joint Staff (i.e., all the branches of the military), meaning they indicate an inter-service concurrence, and common position when engaging policy makers and Congress.
JUONs are in turn the initial/interim material solution, the ‘get whatever you can, now,’ that can trigger longer term solutions. Most nations have their own equivalent to the US DOTMILPF framework for institutional capability development. DOTMILPF stands for Doctrine, Organization, Training, Materiel, Leadership & Education, Personnel, Facilities, and Policy. These lines of effort are what lead the US military to push things like formalizing/updating counter-UAS operational doctrine, or establish a c-UAS university to train and teach future leaders, or start the many-years-long R&D processes to develop more cost-effective material solutions that fit into the doctrine and education frameworks.
While the big budget military spending absolutely requires Congressional assent, that P in DOTMILPF stands for Policy for a reason, and part of Policy includes pitching the concept to Congress. While Congress passes an annual budget, and has the power of the purse, and thus to accept, reject, or modify as it will such as refusing DoD requests to retire old airplanes, it does so in the context of longer-term military planning and repeated approaches. Because so many aspects of a national military strategy are long-term as opposed to year-by-year, the US military maintains a rolling 5-year plan presented as the Future Years Defense Program (FYDP). While Congress is the ultimate decider of budget, those decisions are shaped by the sort of cognitive biases that data asymmetry can benefit from.
Never considered the national budget in terms of the cognitive bias implications of long-term plans? The anchoring bias leads towards the first number presented… even if that number is part of a four-year forecast out years before you have to make a decision. The availability heuristic influences you by what is most easily at hand… such as years of military planning forecasts for years in advance. The framing effect can provide greater credibility to the more regular, consistently ‘professional’ presentations of a dedicated agency than an ad hoc lobbyist. The hindsight bias can make that proposal dismissed last year, but re-submitted again the next year, seem so much more reasonable given [more recent thing]. And hey, why not throw in the halo effect if you are a Congress person of a major military committee who likes the military, or the in-group bias for when those DOTMILPF implementation funds can flow to your or your allies constituents, or the bystander effect of just deferring the policy formation to the military, who clearly has spent so much more time thinking about the problem and how to solve it?
Longer-term and deliberate planning and pitching efforts is the dark secret of why militaries can so often have outsized influence in bureaucratic policy fights, which is what ultimately delivers organization and material solutions. Not everyone needs a good military, but a good military by design will try to be proactive, propose solutions for consideration, plan to identify and mitigate obstacles, and persist in overcoming challenges. These same virtues in a military sense have (some) translation to the policy influence sphere.
This is how, in the US at least, a JUON started in 2016-2017 is turning into military academies and truck-mounted c-UAS lasers within a decade.
By contrast, the first FAA Aviation Rulemaking Committee on small UAS was in 2008, and the Congressional mandate to integrate drones into the US airspace was passed in 2012, and the FAA presented a report on beyond-visual-line-of-sight regulatory considerations- not the regulations but a report on possible regulations- in… March 2023.
There are a lot of good recommendations in that report. A lot of necessary recommendations too, with a lot of thought put into practical implementation issues and involving relevant stakeholders. Something like a digital license plate requirement is a key capability, if only because it can mean any drone which is is NOT broadcasting itself and its registered user can be presumed non-law-abiding if it flies at a restricted area. That sort of distinction can be vital when you have potentially seconds to respond, and when you have a potential lawsuit on the far end.
But you have to admit- that rate of policy generation seems kind of slow. And if it takes the FAA so long to do so much, why not simply turn over c-UAS policy to the military in earnest?
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Obstacles To Military-Led Counter-Drone Domestic Policy
This section is going to focus on some uniquely American disfunctions policy dynamics, to serve as a demonstrative example of what other countries may have their own charming cultural challenges in.
Three general policy challenges for military counter-drone policy are when the military legally shouldn’t, physically cannot, and when a military involvement makes it harder for others to contribute.
On the legal side, few national leaders want the military to actively lead domestic law enforcement. Even military juntas tend to prefer not resorting to the military for day-to-day functions. Military doing daily law enforcement is the military moving on a day to day basis, militaries moving daily at their own discretion can move on other days at their own discretion, and if you give routinely moving military formations the sort of capabilities that go into counter-drone operations you have a potential coup force always on the move.
In the US, that policy challenge gets worse due to legal traditions and common law precedents.
Take the Posse Comitatus Act, which makes it a crime for individuals to use the US military to enforce federal laws except in contexts authorized by Congress. Congress has the President ways to do that, such as through the Insurrection Act, has been why opposition to military support to ICE has been to challenge the legal basis enabling such activations. Posse Comitatus has a checkered, arguably racist history- it was a basically the end to the post-Civil War Reconstruction Period where American southern states traded political support in a contested presidential election in return for an end to Federal troops being used in the South. However, it has become part of the American political tradition, and legal precedent with things like the US 8th Circuit case Bisonette v. Haig finding it as the reasonable basis for a possible 4th Amendment violation when the US military assisted US law enforcement operations at the 1973 activist occupation of the Wounded Knee Indian reservation. This case spurred a modernization of US legal policy on how the US military can support federal or state law enforcement and other agencies, collectively consolidated in the late Cold War period into the Defense Support of Civil Authorities(DSCA) policies.
So far so good, right? Not quite. In an important respect, the DSCA reforms and later commercial drone regulations made the US military less suited for providing domestic c-UAS support.
See, there is separate US legal policy on the matter of judicial branch deference towards executive actions not explicitly authorized by law. In the 1952 Korean War Steel Seizure Case, where President Truman nationalized various steel makers in order to support the war effort, citing executive branch powers. The Executive lost the case, and in one of the concurrent opinions, Justice Robert Jackson established the still-standing 3-category standard for how much deference the Judicial Branch (particularly the Supreme Court) would give to Executive Branch actions. The three categories were if the Executive Branch operated in line with a Congressional law (maximum deference), if the Executive Branch acted in opposition to Congressional law (minimum deference, unless separation of powers favored the Executive), and the ‘twilight zone’ where Congress was silent. This Supreme Court precedent gives some deference to the Executive if Congress has not passed a law.
But- this twilight zone does not apply to counter-drone policy, because Congress has passed laws on drones.
They may be bad laws, or incomplete laws, or laws whose rulemaking recommendations only came out in 2023, but there are laws on the books as to who may counter unlawful drones in the US and how, even if they have nowhere near the manpower or resources of the US military. And per the nuances of the Steel Seizure case, where Congress not including an authority in an otherwise topical law is interpreted as ‘Congress considered and chose not to’ as opposed to ‘Congress has not considered at all,’ Executive policy proposals to use the military for domestic c-UAS would face stricter scrutiny / minimal deference.
Which means they would run into the posse commitatus prohibition. Which means relying on exceptions largely written into laws written before domestic drones were a consideration. Which goes back to authorities, and the constraints on authorities that do exist.
And that’s if the military was the best suited instrument at all. Which, uh, it isn’t.
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Issues With Military-Led Counter-Drone Domestic Policy
There are a number of policy-level drawbacks to relying on the national military to deliver your domestic drone defense policy. And this isn’t just the competence question of letting military officers write regulations for the FAA in a multi-billion economic sector. Or the misaligned incentives in such a system.
Part of this is just a numbers and manpower reality. The US Army has about 8,600 air defense soldiers in the active service, national guard, and reserve.. There are about 20,000 public and private airports in the US. Even if you took every single air defense artillery expect from every other military function and spread them around the country, you wouldn’t have enough for one dedicated military air defender per airport.
By contrast, there are nearly 18,000 law enforcement agencies in the US when you factor state and local law enforcement.
Part of this is a budget issue. The opening Trump administration budget request for the entire defense department in FY26 was about 1 trillion USD. That includes everything from manpower to aircraft carriers.
In comparison, US states in FY21 spent about $1.8 trillion USD, on top of the about $1.9 trillion spent by municipalities below the state level.. Even though law enforcement expenditures are ‘only’ about 4% of state and local expenditures, that is literally tens of billions that could be reconsidered to assist local and regional counter-drone protections…
…if it weren’t a federal crime for SLTT law enforcement to conduct various counter-drone actions with anti-drone equipment.
And finally, part of this is an information / coordination issue, including classified information policies.
If you give a domestic counter-drone mission to the federal military, you are not relieving them of their obligation to restrict the information according to national security information directives. After all, classified information is restricted because it could be used by adversaries to harm a country. The locations, limitations, and capabilities of defensive systems certainly count, and all the more sensitive if applied to places of exceptionally serious consequence, which could be even more restrictive classifications.
But there are only so many people with security clearances, and most of them work for the federal government. Even Congressional representatives are allowed just two staffers to have Top Secret clearances. While American law enforcement agencies have broad access and use of Law Enforcement Sensitive (LES) information, this information- from a policy perspective- is considered unclassified. It can be shared more easily than classified information because it categorically not Classified, a distinct legal category.
And it is not just civilian law enforcement that is limited by classification considerations. Academic and external reviews suffer as well. Consider what it takes for an academic, or a journalist, or even a good governance group to do to conduct a review of government counter-drone efforts. One of the first requirements for a review is to have information to work from. If the government agencies involved are (Properly! Legally required to!) restricting relevant information, very few people are going to be able to see or review that information.
Which means few people will write on it, even if a new emerging policy weren’t changing so often that major reviews would be outdated before they were published. And this doesn’t touch on how government administrative divisions generally mean one part of a government typically does not, and cannot, write to the competencies of the other. Imagine if the civil air authorities tried to proscribe counter—drone doctrine, or the military tried to order counter-drone processes of the national police, or the national police tried to dictate the legal rights or obligations of drone users. Separation of powers does not just limit the government ability to act, but also the ability to provide comprehensive and consolidated information for outsiders to use.
You can see this impact if you look for numbers of academic publications on ‘drones’ versus ‘drone policy.’ Everyone can talk about how dangerous drones are because the information is public, but there is a lot less available on what states are doing about it… which in no way implies they are doing what they are doing well.
Like, say, keeping a national policy that forces local police to become air pirates if they want to throw a jacket on a dangerous drone. Will they get prosecuted as such by government officials? Probably not. Might they get sued as such by private citizens? Maybe not. Could malefactors or ambulance-chasing lawyers sue them to try and coerce a settlement or deter an action? Absolutely. That sort of legal disfunction leads to policy paralysis even when a couple cargo trucks with drones can blow up a non-trivial fraction of a strategic bomber force in a couple of hours.
So despite all the institutional and policy first-mover advantages a military has in trying to mitigate drones from a military perspective, it is not enough. A military solution is leaving masses of manpower and law enforcement budget resources on the floor. If you give a policy portfolio like domestic drone defense to the a military, you are inheriting all the policy baggage restrictions that come with it, ranging from legal restrictions (that could be changed) to budget and manning (which are a lot harder to) to basic coordination paradigms.
Counter-drone policy is hard, man. When I told @Amadan that I considered drones a revolution in military affairs that would change the relationship between the population and how war is conducted, this is part of what I meant but did not fully elaborate on at the time.
Domestic drone regulations / drone security policy is going to be a part of national defense and security politics going forward. Even Ukraine and Russia stop formally sending hundreds of drones at each other as cruise missiles, they are still going to need the domestic policy apparatus to make sure the other doesn’t do it on the sly. Law enforcement resources will be utilized to enforce drone laws, the nature/willingness of citizen cooperation/voluntary enforcement of such laws will determine the scope within which malefactors can use drones malevolently, and the tools of civil drone defense will overlap with the tools of military drone warfare.
If, you know, it’s not a crime for you to do your part.
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So, What Changed?
Ah, I never answered that when I went on a bit of a policy history tour, did I? Amusingly enough, some non-military counter-drone policy reforms were smuggled into the US FY26 National Defense Authorization Act that was signed into US law mid-December 2025.
After that record-breaking government shutdown at the start of the fiscal year, which broken in part because of the political costs of withholding paychecks from air traffic controllers and military personnel, the Republicans and Democrats didn’t agree so much to a government budget as much as the military budget for the year, which is the lion’s share of the discretionary budget anyway. Since it was going to pass, various riders and defense-adjacent topics were included, including the SAFER SKIES Act.
The SAFER SKIES Act provides a host of authorities most notably to the Department of Homeland Security (which coordinates state and local law enforcement intelligence-related issues at that Unclassified//LES level), the Department of Justice (which coordinates traditional law enforcement), and the Department of Transportation (which owns the FAA, which regulates drones, whose rules are to be enforced). It also provides legal supporting roles for the Department of Defense (with its military counter-drone expertise and policy-thinking) to help the aforementioned agencies, albeit not so much directly.
The most significant new authority permits the Department of Homeland Security and Department of Justice to create regulations authorizing SLTT law enforcement agencies to lawfully conduct c-UAS. This is very much a federal oversight / ‘you may only do so if you fully comply with our rules’ model, but what it also means is that state and local governments can apply to and eventually establish counter-UAS capabilities at critical infrastructure, major social events, and in other contexts. Naturally, they will often do so at their own expense in terms of manpower and money… but now that it’s legal to, they can also ask their state representatives lobby for Congressional aid in that respect.
This isn’t the full list of policy reforms included in the proposed-but-not-passed H.R.5061 - Counter-UAS Authority Security, Safety, and Reauthorization Act, which itself was the re-introduction of H.R.8610 of the same name, which itself was built on previous bills that died in committee.
But it did pass into law, and the authorities are written in such a way- particularly the authority for the DHS and DOJ to come up with their own regulations in coordination with the FAA and DOD- that this is a substantial… not blank check, but ‘write the requirements you wanted us to write’ mandate. A lot of those would-be lawful requirements are probably going to be federal regulations backed by this law instead.
Which, going back to legal precedent of the Steel Seizure case from the Korean War, gives the Federal government a lot more policy flexibility in terms of judicial deference. While a H.R. 5061 passage would provide for even stronger judicial deference grounds, the SAFER SKIES Act moves the needle from ‘presumptively illegal’ to ‘some deference, subject to judicial review.’
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So, What’s Next?
To be clear, a law is nowhere near enough on its own. It is ‘merely’ a critical pre-requisite. Now that it is no longer necessarily a federal crime for states or cities to invest in counter-drone capabilities, they can start doing so if they want to… which, if you remember New Jersey from a year ago, some probably would like to. Once the DHS and FAA make their regulations on what a ‘legal’ counter-UAS system is, local authorities can look into buying it. Once the DOJ does its own certifications of how privacy-infringing technologies can be used to mitigate infringements, and settles on the sort of training and solemnly signed paperwork people will have to go through to use it, people can be hired to use them. At which point military trainers, or military veterans who already know the systems before they join the force, will gradually start training classes of volunteers, building contracting companies of certified operators, and all that privatization of defense jazz.
The more there is a legal military contribution to the domestic counter-drone policy, the more Department of Defense/War experts on air (and drone) defense, policy/programming, or investment planning can do so with an eye on things like military surplus transfers to law enforcement down the line. Once the FAA/DOJ/DHS make regulations saying it’s okay for certified SLTT law enforcement to use them, of course. Maybe in a couple of decades, instead of mine-resistant infantry carriers your local police department will get counter-drone laser trucks that will sit the in background of public events, or do staged demonstration events in front of school children and parents as part of the security theater to persuade people it’s safe to be out under drone-filled skies.
Heck, this is even good news if you are the sort of person who thinks it is a good thing for the US government, or even state and local governments, to have both foreign and domestic partnerships. As alluded to before, a lot of emerging drone policy is either copying what others do or waiting and watching. Russia and Ukraine may have both fielded significant military counter-drone defenses, but not generally the stuff that can simply be shifted to the civil sector.
A government that actually develops and field-tests a domestic c-UAS policy is a government that can weigh in and persuade other states to adopt a more aligned c-UAS policy with more respect to underlying considerations, like ‘how much information should be included in drone registration’ or ‘retention of signal intercepts by private companies.’ Especially if you have an expeditionary military, every dollar, system, or body a local host provides towards its local c-UAS is an additional dollar, system, or body that can also be protecting your forces.
So, good news overall, if not sufficient news. The best time to plan a policy plant a tree was twenty years ago, the second-best time to start is now, and all that.
Still, it is the end of an era. A bad era, a worrying era, a frustrating era where uncounted people raised uncounted cautions only to see them play out on TV in the skies over Germany and the US, and then still fall behind the culture war of the hour for yet another year. But an era nonetheless.
In the future, a little child I know will have no idea what’s behind the smirk when I snatch their little drone out of the air, or why I insist on putting a jolly roger sticker onto it.
Dean
Flairless
10hr ago
Am I missing something here? Is there a reason why these incredibly powerful, important political parties seem to have zero effort involved in actually getting young people to work for them? Seems like an incredibly massive self-own.
You ever heard the expression "Congress in session is Congress on public exhibition, whilst Congress in its committee-rooms is Congress at work"? Something similar exists in political parties. Political party youth groups are youths in public exhibition, while youths in party organs are youth in politics.
What this does mean, though, is that it is low-hanging fruits to make the sort of improvements that cause an effect, and of course get notice. Volunteer not just to join a youth group, but to lead the organization efforts for something, and its that coordination effort that will create the opportunities for others to join. Sure, the nominal existing head may get the notice / credit initially... but if they already have a reputation for not doing much, the practical coordination / networking goes through you.
Dean
Flairless
2d ago
He also kills political dynasties, which always good for bringing in new blood.
Dean
Flairless
3d ago
Particularly if you hope to stand up to any bully or petty tyrant who would call you a fool.
There will always be people happy to accuse their detractors, political opponents, or outgroup a bunch of idiots.
Dean
Flairless
3d ago
This is part of what I was thinking when I was trying to gesture that it was mods as a class, not necessarily nara in particular, who can screen the AAQCs. Even if a mod doesn't directly get involved in the AAQC side of thing, so long as nara respects the judgement of mods who felt it appropriate to condemn, that itself can be a de facto if not de jure veto on AAQCs. I suspect it would be harder for uninvolved mods to screen / promote a comment as particularly positive, beyond outright saying in a public post that nara sees when reviewing the discussion from a nomination, but a soft-veto is a pretty easy thing to emerge even without formal coordination.
Dean
Flairless
3d ago
You don't have to strawman it either, whether you like to or not. Nor do you have to diminish, or exaggerate, the things you do not like just because others do.
Dean
Flairless
3d ago
That's another example of the sort of motivated reasoning will let people accept and spread as a counter-veiling evidence and a basis to dismiss earlier information, yes. Appeals to personal credulity / experience are easy ways to implicitly dismiss something without having to formally make a claim- it's just another form of 'just asking questions' to raise skepticism, except without the quesitons.
Dean
Flairless
3d ago
Dropping children off in these places after a major expose doesn't debunk. The lack of children despite parents being in on it was the easily visible indicator of fraud that- having been explicitly identified- is easily rectified afterwards to obfuscate follow-on attention and allow motivated individuals to claim that children were always there.
The sort of motivated people who believe this sort of video 'debunks' are also the sort of people who wouldn't be persuaded by 'systematically eliminating other possibilities,' since motivated reason is under no obligation to conceed that other possibilities were properly eliminated based on whatever trivial grounds they have. They could even invent their own grounds of dismissal, like claiming that the videos were made on holidays or weekends where there would be no children.
It's not like such motivated reasoning against anti-progressive activist exposes are unknown. I'm sure you remember when the planned parenthood videos were dismissed as bad faith and misleading for editing techniques that many of the media organizations critiquing it were using, even as the activists posted the full videos which the media organizations rarely do and went out of their way to ignore in order to insinuate deception without, you know, showing the deception.
Dean
Flairless
11d ago
Have I ever struck you as being not into introspection or lacking self-awareness?
Must... not... make... obvious zinger...
Dean
Flairless
13d ago
If you have to assume the conclusion to be convinced by what follows, you are presenting the map, not the terrain. Particularly when it requires- as you have to @FCfromSSC - ignoring the limitations of the model all the more conspicuously when pointed out.
There is nothing particularly reasonable about requiring pre-commitment to a model. It is an act of faith. Faith can be a useful approach for those who cannot prove foundational beliefs- it is completely tangential to being true or not- but 'just trust me, bro' is not a position from which someone can accuse others of ignoring reality in favor of their own model.
Dean
Flairless
13d ago
In turn, so must you. It is on you to demonstrate that your claims of the territory are not just another, and inferior, map.
Dean
Flairless
14d ago
Why does he need better information to discard your theory? It's your theory that needs to provide better information to justify its adoption.
Dean
Flairless
14d ago
This is one of those things that is a legal red line, but is obviously such a sensible thing to do (unlike, say, having Yemeni-American citizens who run off and become jihadists) that nobody really cared except leftists.
The thing is, the legal line isn't where people think it is.
This goes into war powers, specifically the Congressional authorization of use of force against Al Qaeda, wherever it was, which included Yemen via AQAP, which is what those Yemeni-American Jihadists were a part of. Once the United States is in a legal state of armed conflict (colloquially 'war'), individuals start falling under various laws of wars and relevant precedents. The precedents applicable to American citizen joining, say, Al Qaida in the Arabian Peninsula, are the precedents established during WW2 with American citizens found serving in the Axis militaries. In Re Territo from WW2 is a relevant case.
The very short version of that is that the legal red line is 'Americans who take up arms against the United States on behalf of parties in conflict with the United States are considered belligerents of that other party, and do not get special exemptions from the normal rules governing conflict.' It is not a violation of constitutional rights to kill a belligerent fighting against the United States, even if that belligerent is an American citizen, any more than taking that belligerent prisoner and keeping them as a POW without an arrest.
The legal issue with hitting a Yemeni-American citizen in a drone strike in a conflict isn't the American citizenship, but the drone strike itself. The American citizenship is immaterial to whether the target is a belligerent- the issue is if you can take the drone strike against a belligerent in the first place.
Now, this doesn't mean that it was a good idea. I myself think it wasn't. But the issue is the awful, not the lawful.
Dean
Flairless
14d ago
until Trump can get decimated in the midterms and they can send 100s of billions to Ukraine again,
For the record for everyone else, the National Defense Authorization Act that passed Congress under the Republican trifecta this week has $800 million earmarked for Ukraine military aid across the next two years.
Dean
Flairless
14d ago
Or, to return to the Clausewitzian classic- war is the extension of politics by other means.
There may well be a theoretical 'pure' war, that ultimate bottom to race to... but that theoretical is stupid, because getting to it requires various disregards of political and even physical considerations and limitations. Even North Korea, the most hyper-militarized country on earth, spends soldier time supporting the harvest, and engineering, and enough other things that after a point you realize the military is also a jobs program for the state.
This, in turn, leads to how politics works in a context of anarchy with no higher power or inherent limiting principle. Unsurprisingly, it leads to cooperation and agreements that often self-limit. These are often unstable agreements, but the reasons that people agree to self-limit, and often uphold such self-limitations, are legion and not exactly new or novel.
Dean
Flairless
14d ago
Many people are under the impression that deploying mines requires digging into the ground and placing them, but that is outdated. That was truer of older mines, but more modern mines are built to be dropped from air, and even shot out of canon artillery, because the speed is more important than trying to hide them.
Dean
Flairless
19d ago
Indeed I was not. I view it about as dimly/lacking in competence as I do the nuclear holocaust scenario. And you are correct in that I was referring to the occupational role alone.
I can absolutely model a nuclear exchange scenario between the US and China, but 'we're going to nuclear genocide 99% of the population and impose a new constitution like this is post-WW2 Japan and no one will resist it like Japan' is enough of a difference in starting positions that I felt it better to simply not to return to the topic.
I just don't understand the difference between going out and taking a boat or taking, say, a plane.
There is no special legal immunity / inviolability for planes either. The reason states don't board planes in mid-air is because it's dangerous and murder / reckless endangerment is bad. If you could do so without killing everyone aboard or putting people at great risk, there is no special legal obstacle. This is seen most often when planes are directed to land so that law enforcement can get to someone identified in the plane.
Like ships, planes are subject to the national / sovereign jurisdictions of both [sovereign state they are in] and [the sovereign state of the owner]. When in the territorial space (air or on the ground) of a nation, they are subject to national authorities, which does include things like 'following air traffic controls' but also 'you can be inspected for smuggling or committing crimes.' They are also subject to the national regulations that apply to their owning interest, which also includes things like 'you will pay taxes for business you do elsewhere in the world' but also 'you are not allowed to smuggle or commit crimes.'
Let's call the [sovereign state of the owner] the first country. Let's call the [sovereign state they are in] the second country.
Where third countries come in is that other countries can have their own lists of crimes that people violate. And when someone does commit a crime against that third state, that state can seek access to the criminal party (or ship, or plane) through either the first country, or the second country.
Second countries have sovereign rights too, and that includes the right to cooperate with other states.
Like, could we send special forces to an airport in Brazil and have them fly out with a dozen Boeing jets and it's not an act of theft or war?
Why would it be an act of theft or war if it is in compliance with Brazilian and American law with the consent of the Brazilian authorities? Is Brazil declaring a war against itself if it receives the American request, considers its various interests, and then goes 'okay, sure?'
Now replace [boat/plane] with [person]. Kidnapping is a crime. Human trafficking is even a crime under international law. But does that mean an extradition for an arrest warrant in another country in accordance with an extradition treaty 'actually' a kidnapping and that extradition is illegal under international law?
[Theft] is not merely 'taking something'- it if it was, then giving gifts would be theft on the part of the recipient because they are taking something being offered. But [theft] is not merely 'involuntary taking of something'- that would allow anyone with an objection to object, whether they were the owner or not. It would also mean that a state is engaging in theft if it recovers stolen goods, or seizes contraband, or collects taxes over the objection of the dispossessed.
You need a bounded concept of [crime] in order to understand what would be a [not-crime].
Something like that would be legal?
Under whose legal jurisdiction would it be illegal?
Jurisdiction in international law requires one of three things: territoriality (it has to happen in your national territory), nationality (such as the victim being subject to your sovereignty), or the nature of the crime itself (such as your country being the victim).
Now apply this to the context of a ship at sea.
If the vessel is outside of territorial waters, there is no territoriality jurisdiction. International waters are owned by no one. There are degrees of territoriality for ships, such as economic zones versus territorial waters, but this is no different than nations having air defense identification zones that go beyond territorial airspace.
Nationality of the ship derives from the flagging of the ship, not the crew. When a ship takes on the flag of a nation, it is subject to the laws of that nation for not only tax and wage purposes (the part most companies care about), but also law enforcement purposes (the things that the flagging state can do / agree to let others do).
The nature of the crime generally requires you to be the victim. In international law, the primary victim of a ship boarding is the sovereign of the ship, and to a different degree the nationalities of the crew, but cargo is cargo. States can take their merchant disputes up in their own courts or other channels, but they have no sovereign standing over the sovereignty of the flagging nation of the ship carrying the cargo.
Now apply this to any given at-sea boarding.
-
Is it done in the territorial waters of a sovereign state that refuses?
-
Is it done against the sovereign assent of the nation that flagged the vessel?
-
Is any other sovereign right being unduly violated?
If the answer too all of these is 'no,' there's little legal obstacle to a boarding. And even if the answer to some of these is 'yes,' it may still be a legal boarding, if there is other international law enabling it- see UN resolution law when the UN bans various exports like weapons proliferation and authorizes members to take actions to stop it.
Or do boats sit in a weird conceptual space?
International law is a weird conceptual space in and of itself. The anarchic nature of the international order means international law is very much 'if it is not forbidden, it is permitted,' when significant parts of the national legal order in most nations is 'if it is not permitted, it is forbidden.'
Unlike most legal contexts, there is no higher appeal authority or source of [international law]. The fundamental legal basis for all international law is the principle of national sovereignty allowing states to enter into agreements with other nations, including the international laws that restrain their own actions. Everything else- including international courts- derives from 'this is international law because a bunch of countries said it should apply to themselves.'
The flip side is that if the states themselves do not agree to establish a limit, there is no other authority establishing the limits. Even when they do agree, it generally does not apply to states that did not agree in some form. Even UN-law ultimately derives from the fact that the sovereign states agreed to join the UN, and in doing so conceded to letting the Security Council do things under the UN charter that says the Security Council can do things.
I genuinely don't understand and am not intending to sound like I'm taking a side here. I'm not intentionally doing the noncentral fallacy. I just want to understand the difference between this and stealing the crown jewels.
Again, you have to have a legal concept of what [theft] is, distinct from [non-theft].
Stealing is taking someone's property without permission or legal right. The authority who has that legal right depends on the sovereign legal jurisdiction. Sovereign jurisdiction at sea depends on the national flag on the ship. The national flag of the ship brings with it the national and international agreements of the state of that flag.
There is nothing legally special about [national crown jewels] where, if you placed them in the sovereign jurisdiction of another country, that other country could not handle them in accordance with its own laws and international agreements.
Dean
Flairless
21d ago
Young Taiwanese who enthusaistically identify as Taiwanese abroad as opposed to broad Chinese diaspora are nowadays volunteering themselves for PRC targeting. Those overseas police stations aren't just for monitoring 'Chinese of non-rebellious provinces.'
Taiwan's youth unemployment isn't great (about 12%), but it's not exceptional for the region either, and it's considerably better than China (about 20%). There may well be some 'the grass is always greener,' but 'our economy will be so much better if we join China!' would be more of a 'maybe China will hyper-subsidize the populace while installing the police state' as opposed to reverting to a higher median.
Dean
Flairless
21d ago
No and no, assuming I am reading you asking only two questions.
The difference between law enforcement at sea and piracy is the nature of law enforcement versus theft. It's fine to claim taxation is theft, but most people will recognize there is in fact a difference.
In turn, countries don't attack objects in a political sense. States have relationships with political actors. War is the extension of politics by other means, and all that. There is no country being attacked if a [Country A] gives its sovereign ascent to [Country B] to board a ship that is / claims to be under the sovereign aegis of [Country A].
Dean
Flairless
21d ago
Very publicly. You can google 'issues with American FMS' to get entire thinktank and policy reports on systemic issues that would be moritifying admissions from other states.
Again, the American failure state tends to be 'people go elsewhere rather than sign the deal' rather than 'the deal already signed falls through.' But a potential deal falling through before it is signed is what leads to, say, Turkey buying the Russian S-400 air defense system, because it wasn't getting traction for more NATO-compatible air defense systems, which in turn led to Turkey being suspended from the F-35 system, which is its own saga.
Or the purchase by Middle Eastern american allies of Chinese c-UAS systems, instead of American equivalents, since the US was prioritizing US and European ally orders over Arabs- an understandable choice on both ends, but American critics (when they can be found) will blame the US prioritization rather than the Arab need and urgency.
Or the current-year saga of various European, especially French, lobbying to lock the US out of the European arms market in the European rearmament spending. This is done with the rather popular, and not undeserved, line of argument that Trump-like Americans might suspend agreed-upon weapon deliveries to pressure European states into security concessions... because that is exactly what Trump did to the Ukrainians after the white house summit fracas, and what parts of the DoD tried to do (though that was a rogue administrative power play that got rolled back hard). A lot of Americans, let alone others, will place more blame on the American side than the Europeans, regardless of other arms trade frictions.
Or the displacement of the US by China as Pakistan's military aid patron. A quick google search suggests China now provides something like 80% of Pakistan's military imports. While there is a considerable number of Americans who view this as a 'good riddance' dynamic, when someone wants to criticize that sort of dynamic, it tends to be from the American-hypoagent 'Who Lost Pakistan?' as opposed to 'those Pakistanis are so unreasonable.'
Now, none of these may count as 'extremely embarrassing' to you. But that's a social framing that itself may indicate an implicit bias of sorts. It's not extremely embarrassing for the Americans criticizing other Americans for an arms deal failure, because they tend to come from a position of 'but if it had been us, we would have done differently and succeeded.'
And that can easily include 'well, we would have honored the original contract instead of trying to change it after the initial agreement was publicly signed,' if the non-American side claims that the deal fell through because of back-end meddling to change the contract.
Dean
Flairless
21d ago
Another variation is the kickback schemes to bribe someone to certify that you deserve the aid. So if the state has an inspector or certifying authority to sign off that you qualify, you give them part of the welfare to attest that you actually deserve it. So if the welfare check is 1000, you kick back X00 back to them so that you both profit.
This later form is easier to scale in an organized crime / corrupted institution way, such as with the recent Somali fraud ring in Minnesota. While the typical risk of scaling is a defection risk of someone wanting a bigger cut and bringing down the whole system, if you can use something like familial/social networks to coordinate, you can mitigate the defection risk and increase the scale of the corruption. All the more so if you can leverage political influence to deter local investigators.
Dean
Flairless
21d ago
You and what occupational army?
The Americans were worn out by a decade trying to occupy a country of 30 million when they had the ability to walk in from friendly buildup areas at the outset. Occupying a country of 1,300 million is just a wee bit beyond the capacity of the modern United States, even without the literal and figurative fallout of a nuclear war.
If they lack the talent to find their way in, they wouldn't be the sort of talent being looked for.
A political party isn't a technocratic assembly looking for credential applicants, it is a group of networkers who can network with and for eachother by their own initiative. People who just want to volunteer for an advocacy group can go to the advocacy groups directly. Networking societies don't fall into a well-structured hierarchy, but rather create an ecosystem of push and pulls as people put something out and offer/encourage/ask/trade others to put in. People who don't understand that / don't at least intuitively grasp it are not the sort of people fit for ill-structured coalition politics.
To bring an anime demonstration of the concept, have you ever read / watched Hunter x Hunter? Do you remember what the first test of the Hunter Exam really was? It isn't the sort of awe-inspiring feats, battles of wits, or hunter-and-hunted of the later series. It is to literally find the exam location.
Some entry tests aren't about streamlining or maximizing candidates, and then filtering over time. It is to filter out unsuitable candidates at the start.
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