The OTHER Assault on the Fourth Amendment in the NDAA? Drones at Your Airport?

Steven Aftergood notes that the Army just issued new directives for the use of drones in civilian airspace. The new directives include nothing earth shattering (my favorite part is the enclosure from 2009 explaining what to do when you lose contact with one of your drones, on PDF 18–but really, what could go wrong?). But it does, as Aftergood notes, reflect a real enthusiasm for using more drones in civilian airspace.

Which brings me to a part of the NDAA debate that has remained largely undiscussed.

Days after the NDAA past, Chuck Schumer started boasting about how the NDAA would bring jobs to Syracuse, NY because the city’s airport might be one of 6 sites approved as test sites for drones flying in civilian airspace.

The National Defense Authorization Act signed into law last week by President Barack Obama allows for the establishment of six national test sites where drones could fly through civil air space.

Schumer, D-N.Y., said Tuesday he pushed for the establishment of six spots, instead of the planned four, to improve the chances that Hancock Field would be included.

[snip]

Schumer said Hancock already meets FAA requirements for unmanned aerial vehicles because about 7,000 square miles surrounding the airport is designated as “special use” airspace.

He said that “making Hancock a test site for this technology would be a boon for Central New York, creating jobs and bringing new investments to our defense contractors that provide thousands of good paying jobs.”

Curiously, the language addressing drones in civilian airspace in the NDAA, as passed, doesn’t actually say this.

SEC. 1074. REPORT ON INTEGRATION OF UNMANNED AERIAL SYSTEMS INTO THE NATIONAL AIRSPACE SYSTEM.

(a) REPORT REQUIRED.—Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall, in consultation with the Administrator of the Federal Aviation Administration and on behalf of the UAS Executive Committee, submit to the appropriate committees of Congress a report setting forth the following:

(1) A description and assessment of the rate of progress in integrating unmanned aircraft systems into the national airspace system.

(2) An assessment of the potential for one or more pilot program or programs on such integration at certain test ranges to increase that rate of progress.

Rather, it seems to require Secretary Panetta to tell Congress whether “one or more” test ranges would “help” us get drones into civilian airspace more quickly. Perhaps the new Army guidelines are part of DOD’s preparation for the report to Congress.

That said, there is evidence that the legislative intent behind the NDAA is to push those 6 sites forward. Here’s what the managers’ statement said about this section (note, the numbering changed as sections got squished together into a bill).

Unmanned aerial systems and national airspace (sec. 1097)

The House bill contained a provision (sec. 1098) that would require the Administrator of the Federal Aviation Administration to establish a program to integrate unmanned aircraft systems into the national airspace system at six test ranges.

The Senate amendment contained no similar provision.

The Senate recedes with an amendment that would require that, for any project established by the Administrator under this authority, the Administrator ensures that the project is operational not later than 180 days after the date on which the project is established.

That would seem to say that the Congressional intent, if not the letter of the law, adopted the language from the House bill, which says this:

SEC. 1098. UNMANNED AERIAL SYSTEMS AND NATIONAL AIRSPACE.

(a) Establishment- Not later than 180 days after the date of the enactment of this Act, the Administrator of the Federal Aviation Administration shall establish a program to integrate unmanned aircraft systems into the national airspace system at six test ranges.

(b) Program Requirements- In establishing the program under subsection (a), the Administrator shall–

(1) safely designate nonexclusionary airspace for integrated manned and unmanned flight operations in the national airspace system;

(2) develop certification standards and air traffic requirements for unmanned flight operations at test ranges;

(3) coordinate with and leverage the resources of the Department of Defense and the National Aeronautics and Space Administration;

(4) address both civil and public unmanned aircraft systems;

(5) ensure that the program is coordinated with the Next Generation Air Transportation System; and

(6) provide for verification of the safety of unmanned aircraft systems and related navigation procedures before integration into the national airspace system.

(c) Locations- In determining the location of a test range for the program under subsection (a), the Administrator shall–

(1) take into consideration geographic and climatic diversity;

(2) take into consideration the location of ground infrastructure and research needs; and

(3) consult with the Department of Defense and the National Aeronautics and Space Administration.

Similar language appeared in the FAA authorization that got hung up in Congress last fall.

SEC. 326. UNMANNED AIRCRAFT SYSTEMS TEST RANGES.

(a) IN GENERAL.—Not later than 1 year after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall establish a program to integrate unmanned aircraft systems into the national airspace system at not fewer than 4 test ranges.

(b) PROGRAM REQUIREMENTS.—In establishing the program under subsection (a), the Administrator shall—

(1) safely designate nonexclusionary airspace for integrated manned and unmanned flight operations in the national airspace system;

(2) develop certification standards and air traffic requirements for unmanned flight operations at test ranges;

(3) coordinate with and leverage the resources of the National Aeronautics and Space Administration and the Department of Defense;

4) address both civil and public unmanned aircraft systems;

(5) ensure that the program is coordinated with the Next Generation Air Transportation System; and

(6) provide for verification of the safety of umanned aircraft systems and related navigation procedures before integration into the national airspace system.

So in addition to the Army releasing new guidelines for drones (remember, btw, that Army Secretary John McHugh, who signed the new guidelines, used to represent Fort Drum in northern NY, which has ties to the efforts to bring drones to Syracuse and already conducts drone surveillance of the black bears in the Adirondacks) it’s clear that Congress is pushing to have drones regularly operating in civilian airspace in 4-6 locations around the country. And as the map above makes clear–taken from this 2010 report–DOD plans to have drones all over the country by 2015.

I’m not entirely certain what the status of those 6 test sites are. But it’s fairly clear that Congress has decided, without any discernible debate, that we’re going to have drones there and elsewhere in the near future.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

30 replies
  1. SteveInNC says:

    And so I would expect the first domestic aircraft-drone collision (that no one could have possibly foreseen) by 2015 as well. Hopefully no one dies.

    I suppose as well that under the way things are done now, if you tried to sue the government over such a collision, the govt would refuse to provide any information based on the state secrets provision. Right?

  2. Emocrat says:

    What Steve said. Putting up drones in largely empty airspace in Iraq or Afghanistan is one thing. Putting them up in northeastern US airspace will make private planes very dangerous. The Tri-State area is the busiest airspace on the continent. Smaller planes won’t be safe with those things flitting around, since drones fly at the lower altitudes… where all those Cessnas and smaller, commuter aircraft are flying.

    What could go wrong?

  3. bmaz says:

    @SteveInNC: and @Emocrat:

    This is a point I have made with Marcy off blog. It sure sounds to me like the drones are going to be operating in traditional VFR civilian airspace that private pilots use. And most of these planes do not have sophisticated radars and avoidance mechanisms. Hell, some of them barely have modern radios and transponders. So, how is that interaction going to go? Sooner or later, not well I think.

    And, while we are on transponders, would anybody who thinks these drones, which are designed to operate fairly quietly and not be seen (oooh, that could be a problem for the VFR pilots too!!) are going to be beeping from standard transponders?? I don’t think so….

    This is just a nightmare waiting to happen.

  4. PeasantParty says:

    So this is why Cheney did all that no-fly zone over his Conn. compound!

    Somebody needs to explain to me how Congress and the Commander in Chief decided that the US Government is at war with the US. I still need a clear understanding and proof of why drones are needed and why the Military can operate this way without specific threats.

    What the HELL is going on in America????

  5. PeasantParty says:

    @SteveInNC: Technically, you would need to sue the Military. In that case, your trial would not be in a regular Federal jurisdiction but a Military one. Therefore, you will not be allowed to show proof, call witnesses, or defend your stance. If you bring suit, then they will not be playing defense, but instead prosecution—OF YOU!

  6. JinC says:

    @bmaz:
    If the drone is designed for a low radar profile and is not squawking, going IFR isn’t going to work either. ATC won’t be able to pick them up and won’t be able to provide separation.

  7. bmaz says:

    @JinC: Exactly! And you know they want to use them around and over bigger cities, which is strictly terminal controlled airspace. I know they are working to make all these rules to permit UAVs and whatnot, but I just not sure I am buying how well it is going to work.

    You know, a lot of the time, it ain’t all that easy to see and know what is cruising around with you as you tool along in your Cessna or Piper. I am not all that crazy about also having to be concerned about some pilotless robot plane, designed to not be seen and likely isn’t squawking on the transponder. This is just nuts anywhere where there is much traffic.

  8. joanneleon says:

    Is it just me or is anyone else wondering why there are almost no sites on that map near the borders? Wasn’t border patrol the primary reason used to justify drone flights in this country in the first place? Or are all of these trainings sites?

    Also, I’m looking at the east coast and the very busy airspace that I live near in the Philadelphia and NYC areas and thinking, WTF? There a lot of sites on that map.

    And, you know, you’d think there would have been some national discussion about this? Nah, I’m just old fashioned, I guess. Gah.

  9. emptywheel says:

    @bmaz: Btw, in the document Aftergood posted today there are some guidelines for non-dual use airport ATC. Plus a list of dual use airports at the back–dunno how the ATC works there.

  10. pdaly says:

    We should see what the “flying car” company Terrafugia thinks of this as well.

    http://www.terrafugia.com/

    The Proof of Concept Vehicle was built over 2007-2008 and testing was completed in 2009. First delivery is scheduled for late 2012.

    Part of their business model is for flying car owners to land at local airports and then drive off in their folded up vehicle. I imagine Terrafugia car flyers will have close calls with these airport drones, too.

  11. pdaly says:

    On second thought, since FAA will only require owners/flyers/drivers of the carplane 20 hours of flight time to obtain a license to fly, perhaps the drones (and the rest of us) will have reason to be fearful and will need to learn evasive maneuvers.

  12. dustbunny44 says:

    Did anyone catch the story of the drone helping to guide the tanker into Nome through the (least dense pack of the) ice?
    http://www.washingtonpost.com/business/coast-guard-icebreaker-tanker-delivering-fuel-less-than-100-miles-from-nome/2012/01/11/gIQAUfdDqP_story.html

    The drone is described as looking like a smoke-detecter with wings, weighs 2.5 pounds, and apparently is guided by the “unmanned aircraft program manager for the University of Alaska Fairbanks’ Geophysical Institute.”

    I’m with y’all regarding drones and spying and our constitutional rights, but it looks like drones are here around us for better or worse. Hopefully the ones the .gov has watching us are smaller because they’re not designed to carry and deliver deadly payloads (again, I hope). And hopefully they’re small enough to be irrelevant when connecting with a people-mover in the air.

  13. pdaly says:

    @bmaz:

    Ooh! Yes the Skycar M600 (military spec) looks the coolest.
    And the vertical takeoff is a nice feature–obviating the need to go to the airport runway. I wonder if Skycar owners will be allowed to leapfrog over traffic in the near future.

    The Moller Neuera model M200G (for off-road, all terrain locomotion) looks like it was inspired by the famous Jetson’s mobile. This answer to Q&A number 11 gives me pause, however
    :

    11. How would the M200G behave if it came to steep drop off?

    The terrain following software would see that the vehicle was out of the ground effect region and attempt to reestablish contact with this zone. It would allow the vehicle to proceed at its maximum safe descent rate until it reestablished contact with the surface and then proceed accordingly.

  14. bmaz says:

    @pdaly: “reestablishing contact” with the ground might be a little iffy in my book. Jeebus.

    The M400X would be my choice. The “Ferrari of Skycars!”

  15. orionATL says:

    what i haven’t seen is any discussion of why the ndaa (“national defense authorization act” , if your’re trying to follow along on this stuff) would specify domestic airports for development of drones for any purpose.

    i thought that american military forces other than national guard were forbidden to operate (other than recruitment, training, and transportation) within the nation’s borders.

    on the surface, this seems to me like yet another “no-thought-about-consequences” congressional decision in a decade + of such congressional decisions.

    is the manufacture of drones supposed to be the cross these congressional miscreants can hold up to voters when it comes time to face those voters later this year?

  16. pdaly says:

    @bmaz: and @ P J Evans,
    yes, and I don’t assume a “steep drop off” includes a “cliff.”

    The 400 model seems to be in a state of flux. Maybe the 600 is based on the newest 400 model. I like the tail design.

  17. pdaly says:

    @orionATL: and @joanneleon

    I agree. No obvious reasons given.

    I also was confused by the seeming redundancy of terms here:

    “4) address both civil and public unmanned aircraft systems;”

    in the FAA authorization quoted above in the main post.

    I assumed civil aviation is non-military (commercial and private flyers) but what is a “public” as opposed to a “civil” system?

    Maybe “public” is the nonmilitary government system? But then why is DoD mentioned?

  18. bmaz says:

    @pdaly: In fairness, most things that go over “steep dropoffs” actually “reestablish contact” with the ground on their own. It is all a matter of style!

  19. pdaly says:

    @bmaz:
    lol. Truth in advertising. If one were to go over a cliff in style in the flying saucer at least there is a chance the vehicle would land on its side and roll like a tire to a safe stop at the bottom of a ravine.

  20. Peterr says:

    @dustbunny44: “And hopefully they’re small enough to be irrelevant when connecting with a people-mover in the air.”

    Hate to burst your bubble, but it wouldn’t take much in terms of size to be highly relevant to airborne people-movers. Engines are designed to shut down after being struck by a mere 4 pound bird — and feathers and meat are, in the relative scheme of things, much squishier than the plastic and metal that make up the drones.

    Think what dropping a wrench into a jet engine would do to all those spinning blades . . .

    Per wiki, “annual damages [from bird strikes on planes] have been estimated at $400 million within the United States of America.”

  21. Flounder says:

    When I saw the map of sites, my first thought was “oh, they’re going to use them for perimeter monitoring and security”

    drones can be 5lb 36″ deals…they can also be 12000lb 30 ft jet powered full size a/c

  22. P J Evans says:

    The non-border states with drone bases look to be mostly conservative, with military bases that can be used without the neighbors finding out easily. (Until now, anyway. But I bet the newspapers in those areas won’t be covering the installation of drones.)

  23. orionATL says:

    OT

    this raw story piece

    http://www.rawstory.com/rs/2012/01/19/senate-democrats-hold-fast-to-anti-piracy-bill/

    relates how the PIPA bill, which off-loads legal costs for copyright enforcement from the large corporations holding a copyright to isp’s, weblogs, and u.s. taxpayers,

    is a creation and a creature of the democratic party in the senate.

    suspect the obama whitehouse and campaign for covertly pushing this bill on senate dems in order to get hollywood money;

    condemn senate dems for being such placid sheep – sponsor sen. patrick leighy, co-sponsor sen charles schumer, sen majority leader harry reid, and 37 other democratic senators sponsoring the measure.

  24. bmaz says:

    @orionATL: Pat Leahy and Dems in the Judiciary Committee are pushing PIPA like their lives depend on it. Whether that has anything to do with Obama and/or his reelection, I have no idea.

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