Counter-UAS Regulation

The malicious or negligent use of drones gives rise to significant risks. While the risky behaviours are subject to existing legal sanctions, the apprehension of perpetrators can be difficult.

Licensing is sometimes proposed as a means of controlling drone operations. However, licensing, even when coupled with surveillance and enforcement, does not prevent unlicensed individuals from engaging in the activity, or licensed individuals from undertaking the activity in an unsafe manner. Notwithstanding the prohibition on using a hand-held cellphone while driving, in the 2017 calendar year the New Zealand Police recorded 23,412 offences of using a hand held device for calling or texting while driving (New Zealand Police, 2018).

“Counter UAS” (C-UAS) systems that defend against unmanned aerial systems are emerging internationally as a way to address the latent threat. Potential legal issues with the implementation of C-UAS in New Zealand are briefly surveyed. I propose the adoption of a licensing system for C-UAS similar to that already adopted in civil aviation regulation.

The most troublesome legal difficulty with adopting C-UAS in New Zealand is the prohibitions against destroying an “aircraft in service" or causing “damage to an aircraft in service which renders the aircraft incapable of flight" contained in the Aviation Crimes Act 1972. While these prohibitions are based on the Montreal Convention, New Zealand failed to include the qualification that these actions are only prohibited if performed “unlawfully”. Other legal difficulties include the anti-hacking provisions of the Crimes Act 1961, which would make it difficult to utilise or sell systems that manipulate the drone’s control system, such as “protocol manipulation”, to control the drone or force it to land in a specific location. The Radiocommunications Act 1989 prohibits the use of intercepted communications, which creates legal difficulties for people other than law enforcement officials to utilise the drone control signal.The Radiocommunications Regulations (Prohibited Equipment - Radio Jammer Equipment) Notice 2011 also provide a general prohibition against jamming, although the Department of Corrections can utilise jamming within the boundaries of a prison.

The legal issues described above suggest that specific legislative authority may be required for C-UAS, as has occurred in the United States. The relevant legislative changes need not be “all or nothing”. As with other potentially hazardous activities, the ability to operate could be restricted to those that have been licensed to do so. The standard licensing model employed by the CAA is an appropriate model. The relevant regulations generally specify a minimum level of safety, but complying with those regulations do not absolve the licence holder from liability arising under the Civil Aviation Act 1990, the Health and Safety at Work Act 2015, or tort. Furthermore, the licence must specify how they will comply with the relevant regulations, which enables the licence holder to elect operating procedures that are most efficient for their specific circumstances.

The same approach could be adopted for the operation of C-UAS systems: a regulation for obtaining a licence for the operation of C-UAS systems could be promulgated, with potential operators of C-UAS systems being required to submit operating procedures for approval in order to obtain a licence. The licensing process adopted by the CAA issues operator licences for a maximum period of 5 years, ensuring that the licensed entity is subject to regular regulatory scrutiny. As C-UAS technology matures the need for licences may be obviated, or alternatively the increasing capabilities of C-UAS systems may reinforce the need for such systems.

Source: This article summarises key aspects of the recent paper:
Shelley, Andrew (2018) “A Framework for Counter-Unmanned Aircraft System Regulation in New Zealand”, Policy Quarterly, 14(3):74-80, August.

A copy of the full paper can be downloaded from Andrew’s author page on SSRN.