A Proposal for Counter UAS Regulation

Andrew Shelley

This article summarises key points from a paper recently published in the New Zealand policy journal Policy Quarterly. The paper sets out the rationale for “Counter UAS” (C-UAS), addresses the legal issues that arise in New Zealand, and proposes a licensing regime to enable the implementation of C-UAS.

It is increasingly clear that drones give rise to potentially significant risks that may not be managed well by our existing regulatory framework. A malicious actor could easily fly a drone into the path of an airliner, deliver contraband to prisons, or drop an improvised explosive device over a sports stadium, without ever being at risk of detection by authorities. A significant risk also exists that an individual who is negligent or reckless could also cause harm by flying into the path of an aircraft, or crashing at a public event.

Licensing is proposed by some 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 laws against speeding, drink driving, and use of cellphones while driving, licensed drivers continue to do all three, and do so while driving registered vehicles. Licensing will not stop the malicious or negligent use of drones.

C-UAS systems that defend against unmanned aerial systems are emerging internationally as a way to address the latent threat. 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 legal issues described above suggest that specific legislative authority may be required for C-UAS, as has occurred in the United States. As with other potentially hazardous activities, the ability to operate could be restricted to those that have been licensed to do so. Unlike flying a drone, the operation of a C-UAS system is relatively conspicuous and a licensing regime is likely to be effective.

The standard licensing model employed in aviation is also an appropriate model for licensing C-UAS. A rule 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.

A full copy of the published paper is available to download from SSRN.