Congress needs to act immediately so drone authorities don’t lapse

Many in Congress have ambitious agendas for the current lame duck session — fund the government, raise the debt ceiling, and legislate the right to marry — but one vital step Congress absolutely must take is to protect the public against threats from Unmanned Aerial Systems, popularly known as drones.

The legal authorities of Departments of Justice (DOJ) and Homeland Security (DHS) to protect the public from drone threats at airports and events like the Super Bowl expire on Dec. 9. Congress and the administration need to agree quickly to one of several competing legislative alternatives, or else agree to simply extend current authorities.

As former senior officials with decades of experience in homeland security and counterterrorism, we know that failure to act in the coming days would put the country at grave risk of a terrorist attack.

Drones are poised to leap beyond today’s military and hobbyist uses. They have the potential over the next 20 years to be a “disruptive technology” — an innovation like cell phones that can significantly alter, for better or worse, the way consumers, business, and industry operate. Drones could make possible the urgent delivery of vital medicines to far-flung doctors and hospitals, deliver spare parts to farmers to keep million-dollar harvesters bringing in crops to feed the world, or make urgently needed deliveries for home and office. For packages, at least, drones have the potential to be like the Jetsons’ car that folds up into a briefcase: mobile, versatile, and ready anytime.

On the other hand, drones could also turn into a security nightmare, used by terrorists or criminals for assassinations and smuggling illegal drugs across sparsely watched borders. Iraqi Prime Minister Mustafa al-Kadhimi survived after being targeted for assassination by drones in July 2021. Drones shut down Heathrow and Gatwick airports, two of the world’s busiest, in 2019. Major sporting events worry about drones carrying explosives — or even just harmless substances whose release would scare thousands of fans and millions of television viewers.

Today, the government’s approach to regulating drones is a patchwork mess of overlapping jurisdictions and capabilities. The Federal Aviation Administration has authority over the nation’s airspace. DHS has the authority to restrict drone flights over sensitive targets. The FBI investigates and DOJ prosecutes violations of Federal law. The Department of Defense (DOD) operates combat and reconnaissance drones overseas, taking out terrorists like al-Qaeda’s Ayman al-Zawahiri in Afghanistan in July. But DOD also has huge concerns about civilian drones flying near military bases. The list of interested players with big stakes goes on.

Congress must now choose among three different legislative proposals that address the expiring authorities. The administration’s plan, announced in April, is the “Domestic Counter-Unmanned Aircraft Systems National Action Plan,” which asked Congress to provide expanded authorities to DHS, DOJ, DOD, other departments and agencies, and state and local governments. In August, a bipartisan group of Senators led by Gary Peters (D-Mich.) and Ron Johnson (R-Wis.) introduced a bill that incorporated most, but not all, of the authorities requested by the administration.

Meanwhile, on the House side, a far narrower competing proposal was also introduced with bipartisan support. It reflected bipartisan concerns about privacy, stuck closer to existing law, and was far more cautious about giving authority to regulate and bring down errant drones.

With time running out, hopes for a visionary compromise are crashing into legislative reality.

Congress and the administration have a first duty to ensure there is no lapse in current, basic authorities — even if it means rolling over existing laws. It does not help that the administration wants a two-year rollover and some in Congress want a one-year rollover. But this can — and must — be negotiated in the remaining days.

Beyond this, drone security and the technology’s economic promise need far more high-level visibility than what they have received so far. Publicity is essential to drive competing bureaucratic, security, and economic interests to a resolution. The nation cannot afford yet another extension in a year, which would cede the field to China, which certainly does not have U.S. security or economic interests at heart.

Some in industry have called for a “drone czar” who understands both the benefits of drones and the need for a rock-solid security solution — someone the president would give the authority to resolve bureaucratic interests and lead high-pressure negotiations with overlapping Congressional committees and privacy, business, and consumer stakeholders. We agree that the president needs to empower a senior White House official who has the time to focus on this all-consuming issue for the next two years. That official needs to be highly visible, rallying industry support and leading a public debate on security and privacy.

Congress needs to act now, extending the expiring laws and writing a “drone czar” into law if that is what it takes to get bipartisan agreement. The nation cannot afford the risk of letting current drone authorities lapse, and it cannot continue to kick the drones down the road.

Thomas Warrick is the director of the Future of DHS Project at the Atlantic Council and the former DHS Deputy Assistant Secretary for Counterterrorism Policy.

Paul Rosenzweig is the founder of Red Branch Consulting, a senior fellow in the Tech, Law & Security Program at American University, and the former DHS Deputy Assistant Secretary for Policy.