```

[Senate Report 115-332]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 564
115th Congress   }                             {                Report
                                 SENATE
 2d Session      }                             {               115-332
_______________________________________________________________________

                                     

                      PREVENTING EMERGING THREATS 
                              ACT OF 2018

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 2836

            TO ASSIST THE DEPARTMENT OF HOMELAND SECURITY IN
 PREVENTING EMERGING THREATS FROM UNMANNED AIRCRAFT AND VEHICLES, AND 
                           FOR OTHER PURPOSES
                           
                           
                           
      
      
      

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               September 4, 2018.--Ordered to be printed
               
                                ______

                     U.S. GOVERNMENT PUBLISHING OFFICE 

79-010                      WASHINGTON : 2018
               
               
               
               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
            Christopher S. Boness, Professional Staff Member
               Margaret E. Daum, Minority Staff Director
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Subhasri Ramanathan, Minority Counsel
                     Laura W. Kilbride, Chief Clerk

                                                       Calendar No. 564
115th Congress        }                       {               Report
                                 SENATE
 2d Session           }                       {               115-332
======================================================================

 
                PREVENTING EMERGING THREATS ACT OF 2018

                                _______
                                

               September 4, 2018.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 2836]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 2836) to assist the 
Department of Homeland Security in preventing emerging threats 
from unmanned aircraft and vehicles, and for other purposes, 
having considered the same, reports favorably thereon with an 
amendment in the nature of a substitute and recommends that the 
bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................5
 IV. Section-by-Section Analysis......................................6
  V. Evaluation of Regulatory Impact..................................8
 VI. Congressional Budget Office Cost Estimate........................8
VII. Changes in Existing Law Made by the Bill, as Reported............9

                         I. Purpose and Summary

    S. 2836, the Preventing Emerging Threats Act of 2018, 
provides authority for the Department of Homeland Security 
(DHS) and the Department of Justice (DOJ) to protect certain 
critical facilities and assets when there is a national 
security risk to public safety posed by an unmanned aircraft 
system (UAS). Additionally, the bill requires DHS to complete 
two threat assessments: the first on critical infrastructure 
and large domestic airports and existing Federal, state, and 
local authorities to counter the threat of nefarious drones; 
the second on how DHS can assist state and local law 
enforcement in countering the threat of vehicular terrorism.

              II. Background and the Need for Legislation

    Extremists and criminals continue to develop and promote 
the use of drone technology for illicit means.\1\ Terrorist 
groups and criminal organizations can buy commercially-
available UAS to carry and drop explosive payloads, deliver 
harmful and illegal substances, and conduct surveillance.\2\ 
Terrorist organizations promote the use of UAS to conduct 
attacks in the U.S. and surveillance on potential targets. For 
instance, Al-Qaeda in the Arabian Peninsula used their Inspire 
magazine in May 2016 to encourage individuals to use UAS to 
collect information about potential assassination attempts and 
killings.\3\ In September 2011, Rezwan Ferdaus, a U.S. citizen, 
was arrested for planning to attach explosives to a UAS and 
attack the Pentagon and U.S. Capitol.\4\ Another potentially 
dangerous incident occurred in 2017 when a UAS flew over the 
San Francisco 49ers and Oakland Raiders National Football 
League stadiums dropping leaflets and causing panic.\5\
---------------------------------------------------------------------------
    \1\U.S. Dep't of Homeland Sec., Illicit Threats from Unmanned 
Aircraft Systems (UAS) (2018) (on file with S. Comm. on Homeland Sec. & 
Gov't Affairs).
    \2\Id.
    \3\Id.
    \4\Id.
    \5\Id.
---------------------------------------------------------------------------
    The Federal Aviation Administration (FAA) places flight 
restrictions in areas like the National Capitol Region, 
football stadiums, and certain government facilities.\6\ 
However, neither the Federal Government nor state governments 
have an enforcement mechanism to pursue those operating UAS 
unlawfully.
---------------------------------------------------------------------------
    \6\14 C.F.R. Sec. Sec. 91.141, 91.145, 99.7 (2018).
---------------------------------------------------------------------------
    Federal law enforcement agencies, such as DHS and DOJ, are 
prohibited from taking actions against UAS due to decades-old 
statutes. Federal laws including the Wiretap Act of 1968\7\ and 
the Computer Fraud and Abuse Act of 1986\8\ were enacted long 
before UAS were widely available. These laws make it illegal to 
intercept any wire, oral, or electronic communication, or to 
access a computer without authorization, respectively, making 
it imposing to use the electronic transmission to track down 
the operator of the drone. Additionally, DHS and DOJ are 
prevented from taking action against a rogue UAS due to the FAA 
Modernization and Reform Act of 2012 that defines UAS as 
aircraft.\9\ Therefore, UAS are subject to aircraft piracy laws 
which make it illegal to seize or exercise control of an 
aircraft.\10\ There are a number of other laws in Title 18 of 
the United States Code (Title 18) that prevent law enforcement 
from taking action against a malicious UAS.\11\
---------------------------------------------------------------------------
    \7\Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 
90-351, title 3.
    \8\18 U.S.C. Sec. 1030.
    \9\49 U.S.C. Sec. 331.
    \10\49 U.S.C. Sec. 46502.
    \11\18 U.S.C. ch. 199, 206, Sec. Sec. 32, 1030, 1367.
---------------------------------------------------------------------------
    In the National Defense Authorization Act (NDAA) for Fiscal 
Year 2017, Public Law 114-328, Congress authorized the 
Department of Defense (DOD) to counter UAS for specific mission 
sets related to the nuclear deterrence mission, the missile 
defense mission, and the national security space mission of 
DOD.\12\ The law gave DOD a complete waiver from criminal 
penalties in Title 18 and the Aircraft Piracy Act\13\ to use 
counter UAS technologies.\14\ A waiver of Title 18 provides the 
ability to operate counter-UAS technology free from unintended 
consequences. The bill also gave the Department of Energy (DOE) 
the authority to use counter UAS technology to protect the 
storage or use of special nuclear material owned by the United 
States.\15\
---------------------------------------------------------------------------
    \12\National Defense Authorization Act, Pub. L. No. 114-328, 
Sec. Sec. 1697, 3112, 130 Stat. 2000, 2639-2640, 2756 (2017).
    \13\49 U.S.C. Sec. 46502 (2018).
    \14\National Defense Authorization Act, Pub. L. No. 114-328, 
Sec. Sec. 1697, 3112, 130 Stat. 2000, 2639-2640, 2756.
    \15\Id.
---------------------------------------------------------------------------
    In the Fiscal Year 2018 NDAA, DOD received expanded 
authorities to counter UAS.\16\ The law included the additional 
following missions: assistance in protecting the President or 
the Vice President; air defense of the United States; combat 
support agencies; special operation activities; and the 
production, storage, transportation, or de-commissioning of 
high-yield explosives.\17\ However, the expanded authority only 
extends to DOD personnel and does not afford any other 
government agencies the ability to utilize counter-UAS 
technology.
---------------------------------------------------------------------------
    \16\National Defense Authorization Act, Pub. L. No. 115-91, 
Sec. 1692. (2018).
    \17\Id.
---------------------------------------------------------------------------
    S. 2836 provides DHS and DOJ the authority to protect 
certain facilities and assets to prevent the threat of a 
malicious UAS attack. It is modeled after the existing DOD and 
DOE authorities to ensure the agencies can effectively 
coordinate and carry out joint mission operations. Like DOD and 
DOE, the bill provides DHS and DOJ a waiver of Title 18 to 
detect, track, disrupt, or mitigate a UAS when it poses a 
security risk to public safety or national security.
    The bill also authorizes DHS and DOJ to begin research and 
development of counter-UAS technology. For DHS and DOJ to use 
this authority, the Secretary of Homeland Security or the 
Attorney General must identify and designate covered facilities 
or assets within the United States that directly relate to 
specific missions of DHS or DOJ. Those missions include 
security operations by the United States Coast Guard and U.S. 
Customs and Border Protection that include facilities, 
aircraft, and vessels; protective operations by the United 
States Secret Service; protection of facilities by the Federal 
Protective Service and deemed to be high-risk or a potential 
UAS target; personnel protection operations by the Federal 
Bureau of Investigation; penal, detention, and corrections 
operations conducted by the Federal Bureau of Prisons 
considered to be high-risk or a potential target; protection of 
buildings and grounds owned or operated by the Department of 
Justice considered high-risk or a potential target; National 
Special Security Events and Special Event Assessment Rating 
events; upon the request of a state's governor or attorney 
general to assist state, local, or tribal law enforcement in 
protecting mass gatherings of people; active Federal law 
enforcement investigations, emergency responses, or security 
operations; and when DHS or DOJ has identified a known national 
security threat involving UAS.
    S. 2836 includes a number of important privacy and civil 
liberties protections. The bill limits the interception of 
communications only to what is necessary to mitigate the threat 
of UAS and any criminal proceedings after the incident. The 
interception of such data must be consistent with the Fourth 
Amendment and all other laws that are already applicable. 
Communications and data are only allowed to be retained for as 
long as necessary, but in no case longer than 180 days, unless 
the records need to be maintained for safety or security 
functions of DHS or DOJ, or for law enforcement purposes. 
Lastly, data and communications intercepted during the 
mitigation of a UAS cannot be disclosed outside DHS or DOJ 
unless used for safety or security reasons or to support a 
criminal investigation.
    The bill's authorities to counter UAS sunset after five 
years so Congress can re-evaluate how the authorities are being 
implemented. DHS, DOJ, and the Department of Transportation 
(DOT) are also required to provide semiannual briefings to the 
Committee on Homeland Security and Governmental Affairs, the 
Committee on Commerce, Science, and Transportation, and the 
Committee on the Judiciary in the Senate, and the Committee on 
Homeland Security, the Committee on Transportation and 
Infrastructure, the Committee on Energy and Commerce, and the 
Committee on the Judiciary in the House of Representatives, and 
to deliver budget related documents to congressional committees 
at the time of fiscal year budget briefings.
    The Committee held a hearing to consider S. 2836 in June 
2018.\18\ Chairman Ron Johnson showed a video of an ISIS UAS 
dropping an explosive device on an Iraqi counter-IED unit to 
demonstrate the reality of how ISIS is currently using UAS to 
deliver explosives to attack targets and the ease with which it 
can do so. The Chairman stated, ``All too often we pass 
reactive legislation in the wake of a terrorist attack or other 
security incident. The purpose of this hearing is to 
proactively address an emerging threat.''\19\ In agreement, 
Ranking Member Claire McCaskill emphasized the need to get 
ahead of the threat and stated, ``Terrorist organizations . . . 
have used drones overseas, and we expect that terrorists are 
interested in exploiting those same capabilities here in the 
United States.''\20\ Witnesses from DHS, DOJ, and FAA testified 
about the threat to the homeland, ways that agencies would 
carry out the counter-UAS authority, and the necessity for a 
legislative fix. In expressing the urgency to provide DHS and 
DOJ with counter-UAS authority, David Glawe, Under Secretary 
for Intelligence and Analysis at DHS stated, ``[t]he threat is 
significant, it's imminent, and it is upon us.''\21\
---------------------------------------------------------------------------
    \18\Preventing Emerging Threats Act of 2018: Countering Malicious 
Drones: Hearing on S. 2836 Before the S. Comm. On Homeland Sec. & Gov't 
Affairs, 115th Cong. (2018) (opening statement of Sen. Ron Johnson, 
Chairman, S. Comm. on Homeland Sec. & Gov't Affairs), available at 
https://www.hsgac.senate.gov/hearings/s-2836-the-preventing-emerging-
threats-act-of-2018-countering-malicious-drones [hereinafter 
``Preventing Emerging Threats Act of 2018: Countering Malicious Drones: 
Hearing on S. 2836''].
    \19\Id. (statement of Chairman Johnson).
    \20\Id. (statement of Ranking Member McCaskill).
    \21\Id. (testimony of David Glawe, Under Sec'y for Intelligence & 
Analysis, Dep't of Homeland Sec.).
---------------------------------------------------------------------------
    In discussing how the authorities will be implemented, 
Deputy General Counsel for DHS, Hayley Chang, testified, 
``[t]he Secretary and/or the Attorney General will make the 
initial designation in consultation with the FAA, under the 
bill. It will be done through a risk-based assessment. So, it 
will be a careful process where we see the highest risk . . . 
connected to one of the missions enumerated in the statute, and 
then the actions will need to be taken, under the bill, 
necessary to mitigate the threat.''\22\
---------------------------------------------------------------------------
    \22\Id. (testimony of Hayley Chang, Deputy Gen. Counsel, Dep't of 
Homeland Sec.).
---------------------------------------------------------------------------
    S. 2836 is the first step toward providing authority for 
the Government to counter the threat of UAS. As Chairman 
Johnson has stated, ``I can't overstate the fact that this is 
such an important first step, but it is a minimal first step. 
This is not going to solve the problem. This just put us on the 
path to begin to address the problem.''\23\ To highlight the 
work that has yet to be done to address the threat, the St. 
Louis Cardinals submitted testimony that reviews the challenges 
that owners and operators of stadiums face in ensuring that the 
public is secure while attending games. S. 2836 lays the 
predicate for necessary research, development, operational 
testing and deployment of counter UAS systems that will 
eventually help secure large venues and mass gatherings that do 
not meet the National Special Security Events and Special Event 
Assessment Rating events.
---------------------------------------------------------------------------
    \23\Id. (statement of Chairman Johnson).
---------------------------------------------------------------------------
    Finally, the bill also requires DHS to conduct two 
assessments to further the agencies' and Congress' 
understanding of emerging threats to our national security and 
public safety. The first is to assess the threat of UAS to 
critical infrastructure and large hub airports, and if any 
additional research and development is needed to counter UAS. 
The second assessment requires DHS to assess vehicular 
terrorism to fully understand the threat in light of recent 
attacks involving vehicles. It also requires DHS to look at 
ways it can support local first responders to mitigate and 
respond to an attack.

                        III. Legislative History

    Chairman Johnson (R-WI) introduced S. 2836, the Preventing 
Emerging Threats Act of 2018, on May 14, 2018, with Senators 
McCaskill (R-MO), John Hoeven (R-ND), Heidi Heitkamp (D-ND), 
and Tom Cotton (R-AR). The bill was referred to the Committee 
on Homeland Security and Governmental Affairs. Senator Bill 
Cassidy (R-LA) and Senator Doug Jones (D-AL) joined as 
cosponsors on May 16, 2018, and Senator Marco Rubio (R-FL) 
joined as a cosponsor on May 24, 2018.
    The Committee considered S. 2836 at a business meeting on 
June 13, 2018. During the business meeting, a substitute 
amendment was offered by Chairman Johnson and accepted by 
unanimous consent.
    Two amendments by Senator Carper were offered and accepted 
by voice vote. The first amendment added additional privacy and 
civil liberties language to the bill. The second amendment 
offered by Senator Carper required DHS and DOJ to consider 
certain factors when defining a UAS threat. Senators present 
for the vote on both amendments were Johnson, Portman, 
Lankford, Enzi, McCaskill, Carper, Peters, Hassan, Harris, and 
Jones.
    The bill, as amended, was ordered reported favorably by 
voice vote. Senators present for the vote were Johnson, 
Portman, Lankford, Enzi, McCaskill, Carper, Peters, Hassan, 
Harris, and Jones. Senator Harris was recorded as voting no for 
the record.
    Consistent with Committee Rule 11, the Committee reports 
the bill with a technical amendment by mutual agreement of the 
Chairman and Ranking Member.

        IV. Section-by-Section Analysis of the Bill, as Reported

Section 1. Short title

    Section 1 gives the bill the short title of the 
``Preventing Emerging Threats Act of 2018.''

Sec. 2. Protection of certain facilities and assets from unmanned 
        aircraft

    Subsection (a) lays out the authority for DHS and DOJ to 
use counter-UAS technology. It authorizes the agencies' 
personnel to take action necessary to mitigate the threat of 
UAS for the safety and security of a ``covered facility or 
asset'' (which is defined later in the bill). This section 
waives liability under Title 18 and section 46502 of title 49, 
the Aircraft Piracy Act.
    Subsection (b) describes the types of action that approved 
personnel can take against a UAS that poses a security or 
safety threat. Those actions include the ability to detect, 
identify, monitor and track UAS, without prior consent; warn 
the operator of the UAS; disrupt control of the UAS; seize or 
confiscate the UAS; and use reasonable force to disable, 
damage, or the destroy it if necessary. This section requires 
that DHS and DOJ coordinate with the Department of 
Transportation (DOT). It also authorizes DHS and DOJ to conduct 
research and development of, and test, counter-UAS technology.
    Subsection (c) specifies that UAS seized by DHS or DOJ can 
be subject to forfeiture.
    Subsection (d) requires that DHS and DOJ issue guidance and 
regulations for their respective Department's use of this 
authority. This section also requires that guidance by the 
agencies be in coordination with DOT and the FAA whenever it 
impacts aviation security and civilian aviation.
    Subsection (e) mandates privacy protections in the guidance 
and regulations issued by DHS and DOJ. This section reiterates 
that all interception or acquisition of communications or data 
be consistent with Fourth Amendment protections and applicable 
Federal laws. This section also limits the keeping of any 
records intercepted to no more than 180 days unless there is a 
law enforcement or criminal nexus. Records may not be disclosed 
outside of the respective Department unless it would support a 
safety or security function of the respective Department, or 
the mission of the Department of Defense or law enforcement.
    Subsection (f) requires that DHS and DOJ identify funding 
sources for the authorities provided in subsection (b) when 
submitting their annual budget materials to Congress.
    Subsection (g) requires DHS and DOJ to brief the 
appropriate congressional committees of Congress every six 
months for the five years after enactment of this bill. The 
brief must include policies and procedures on limiting the 
impact to the National Airspace System; a description of 
instances when the given authorities are used; how the 
departments have worked to inform the public of the given 
authorities; and how DHS and DOJ have engaged with other 
federal, State, and local law enforcement agencies with the 
given authorities.
    Subsection (h) states that this bill does not vest existing 
authorities of the respective departments to any other 
department.
    Subsection (i) provides a sunset of five years after 
enactment of the bill. The President may extend the authorities 
for 180 days for national security reasons. The extension by 
the President must come 45 days before the sunset.
    Subsection (j) limits the counter-UAS authorities provided 
to DHS and DOJ to those specifically provided for in the 
legislation.
    Subsection (k) provides definitions for a variety of terms 
throughout the legislation. The appropriate congressional 
committees in the legislation are defined as the Homeland 
Security and Governmental Affairs Committee, the Commerce, 
Science, and Technology Committee, and the Judiciary Committee 
in the Senate; and the Homeland Security Committee, the 
Transportation and Infrastructure Committee, the Energy and 
Commerce Committee, and the Judiciary Committee of the House.
    This bill defines a ``covered facility or asset'' as those 
(1) within the United States; (2) that are identified by the 
Secretary of Homeland Security or the Attorney General through 
a risk-based assessment; and (3) that directly relate to one of 
the following missions: US Coast Guard and US Border Patrol 
security operations, including securing facilities, aircraft 
and vessels; US Secret Service protection operations; Federal 
Protective Service protection of DHS facilities; US Marshalls 
and DOJ protection of facilities and court personnel; Bureau of 
Prisons protection of high-risk facilities; Security for 
Special Events; National Special Security Events designated by 
the Secretary of Homeland Security; Special Event Assessment 
Rating Events; when a state governor or attorney general 
requests assistance for a mass gathering event that would not 
otherwise fall into the security for special event category; 
active Federal law enforcement investigations, emergency 
responses, or security operations carried out by DHS or DOJ; or 
reacting to a known national security threat that could involve 
unlawful use of a UAS.
    This bill defines personnel that may use the given 
authority as officers and employees of DHS and DOJ. It also 
authorizes contracted employees of DHS to use the authority in 
accordance with regulations and guidance by DHS.
    Subsection (l) requires DHS to issue an assessment on the 
threat from UAS to critical infrastructure and large domestic 
airports. The evaluation must include a look at current 
authorities for Federal, state, local, and tribal law 
enforcement. Additionally, the assessment will include current 
resources available to private and state-owned critical 
infrastructure and large domestic airports, as well as 
additional authorities the Department may need in the future. 
DHS is required to submit the assessment as an unclassified 
report to Congress that may be accompanied by a separate 
classified annex.

Sec. 3. Department of Homeland Security efforts to help protect 
        individuals from vehicular terrorism

    This section requires DHS to perform an assessment on 
actions DHS is taking to support first responders and the 
private sector to prevent vehicular terrorist attacks.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 16, 2018.
Hon. Ron Johnson, Chairman, 
Committee on Homeland Security and Governmental Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2836, the Preventing 
Emerging Threats Act of 2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

S. 2836--Preventing Emerging Threats Act of 2018

    S. 2836 would authorize the Department of Homeland Security 
(DHS) and the Department of Justice (DOJ) to take certain 
actions necessary to mitigate the threat to selected U.S. 
facilities or assets posed by unmanned aircraft (drones). The 
authority provided by the bill would expire five years after 
enactment. S. 2836 also would direct DHS to prepare assessments 
of the threats presented by unmanned aircraft systems and 
vehicular terrorism.
    Using information provided by DHS and DOJ, CBO estimates 
that implementing S. 2836 would cost less than $500,000 
annually, assuming the availability of appropriated funds. We 
expect the departments would use existing resources, as needed, 
to execute the new authorities provided by the bill. For 
example, under S. 2836 both DHS and DOJ could monitor or track 
an unmanned aircraft without the consent of the operators or 
owners.
    Enacting S. 2836 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting S. 2836 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    S. 2836 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman:

HOMELAND SECURITY ACT OF 2002

           *       *       *       *       *       *       *

TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION

           *       *       *       *       *       *       *

  Subtitle A--Information and Analysis and Infrastructure Protection; 
Access to Information

           *       *       *       *       *       *       *

SEC. 210G. PROTECTION OF CERTAIN FACILITIES AND ASSETS FROM UNMANNED 
                    AIRCRAFT.

    (a) Authority.--
          (1) In general.--Notwithstanding section 46502 of 
        title 49, United States Code, or any provision of Title 
        18, United States Code, the Secretary and the Attorney 
        General may, for their respective Departments, take, 
        and may authorize personnel of the Department of 
        Homeland Security or the Department of Justice 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 or the Attorney General, in consultation with 
        the Secretary of Transportation, in accordance with 
        paragraph (3)) that an unmanned aircraft system or 
        unmanned aircraft poses to the safety or security of a 
        covered facility or asset.
          (2) Requirements.--In taking the actions described in 
        subsection (b)(1), the Secretary or the Attorney 
        General, as the case may be, shall--
                  (A) avoid infringement of the privacy and 
                civil liberties of the people of the United 
                States and the freedom of the press consistent 
                with the Federal law and the Constitution of 
                the United States, including with regard to the 
                testing of any equipment and the interception 
                or acquisition of unmanned aircraft or systems;
                  (B) limit the geographic reach and duration 
                of the actions to only those areas and 
                timeframes that are reasonably necessary to 
                address a reasonable threat; and
                  (C) use reasonable care not to interfere with 
                authorized or non-threatening manned or 
                unmanned aircraft, communications, equipment, 
                facilities or services.
          (3) Threat defined.--In defining the term ``threat'' 
        for purposes of carrying out paragraph (1), the 
        Secretary or the Attorney General, as the case may be, 
        shall take into account factors, including, but not 
        limited to, the potential for bodily harm or loss of 
        human life, the potential loss or compromise of 
        sensitive national security information, or the 
        potential severe economic damage resulting from the use 
        of an unauthorized unmanned aerial system in the 
        vicinity of a covered facility or asset.
    (b) Actions Described.--
          (1) In general.--The actions authorized in subsection 
        (a) 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.
          (2) Required coordination.--The Secretary and the 
        Attorney General shall develop for their respective 
        Departments the actions described in paragraph (1) in 
        coordination with the Secretary of Transportation.
          (3) Research, testing, training, and evaluation.--The 
        Secretary and the Attorney General may conduct 
        research, testing, training on, and evaluation of any 
        equipment, including any electronic equipment, to 
        determine its capability and utility to enable any of 
        the actions described in paragraph (1).
          (4) Coordination.--The Secretary shall coordinate 
        with the Administrator of the Federal Aviation 
        Administration when paragraph (3) might affect aviation 
        safety, civilian aviation, use of airspace, aerospace 
        operations, and aircraft airworthiness.
    (c) Forfeiture.--Any unauthorized unmanned aircraft system 
or unmanned aircraft described in subsection (a) that is seized 
by the Secretary or the Attorney General is subject to 
forfeiture to the United States.
    (d) Regulations and Guidance.--
          (1) In general.--The Secretary, the Attorney General, 
        and the Secretary of Transportation may prescribe 
        regulations and shall issue guidance in the respective 
        areas of each Secretary or the Attorney General to 
        carry out this section.
          (2) Coordination.--
                  (A) Coordination with department of 
                transportation.--The Secretary and the Attorney 
                General shall coordinate the development of 
                their respective guidance under paragraph (1) 
                with the Secretary of Transportation.
                  (B) Effect on aviation safety.--The Secretary 
                and the Attorney General shall respectively 
                coordinate with the Secretary of Transportation 
                and the Administrator of the Federal Aviation 
                Administration before issuing any guidance, or 
                otherwise implementing this section, if such 
                guidance or implementation might affect 
                aviation safety, civilian aviation and 
                aerospace operations, aircraft airworthiness, 
                or the use of airspace.
          (3) Risk-based assessment.--The guidance issued by 
        the Secretary and the Attorney General, respectively, 
        shall include criteria of the risk-based assessment 
        required under subsection (k)(3)(A) that includes an 
        evaluation of the potential impacts on the use of the 
        authorities granted in this section on the safety and 
        efficiency of the national airspace system, including 
        the ability to provide advance notice to aircraft 
        operators as appropriate, and the needs of law 
        enforcement agencies and national security.
    (e) Privacy Protection.--In carrying out actions authorized 
under subsection (b), the Secretary or the Attorney General, as 
the case may be, shall ensure that--
          (1) the interception or acquisition of, or access to, 
        communications to or from an unmanned aircraft system 
        under this section is conducted in a manner consistent 
        with the Fourth amendment to the Constitution of the 
        United States and applicable provision of Federal law;
          (2) communication to or from an unmanned aircraft 
        system are intercepted, acquired, or accessed only to 
        the extent necessary to mitigate the reasonable threat 
        that an unmanned aircraft system or unmanned aircraft 
        poses to the safety or security of a covered facility 
        or asset, or to investigate or prosecute a threat, as 
        defined by the Secretary or the Attorney General, 
        respectively, under subsection (a)(1);
          (3) records of such communications are maintained 
        only for as long as necessary, and in no event for more 
        than 180 days, unless the Secretary or the Attorney 
        General determine that maintenance of such records--
                  (A) is necessary to support one or more 
                safety or security functions of the Department 
                of Homeland Security or the Department of 
                Justice, respectively, or to investigate or 
                prosecute a threat, as defined by the Secretary 
                or the Attorney General, respectively, under 
                subsection (a)(1); or
                  (B) is required for a longer period to 
                support a civilian law enforcement agency or by 
                any other applicable statute or regulation; and
          (4) such communications are not disclosed outside the 
        Department of Homeland Security or the Department of 
        Justice unless the disclosure--
                  (A) would fulfill a safety or security 
                function of the Department of Homeland Security 
                or the Department of Justice, respectively, or 
                to investigate or prosecute a threat, as 
                defined by the Secretary or the Attorney 
                General, respectively, under subsection (a)(1);
                  (B) would support the Department of Defense, 
                another civilian law enforcement agency, or the 
                activities of a regulatory agency of the 
                Federal Government in connection with a 
                criminal or civil investigation of, or any 
                regulatory, statutory, or other enforcement 
                action arising out of, an action described in 
                subsection (b)(1); or
                  (C) is otherwise required by law.
    (f) Budget.--The Secretary and the Attorney General shall 
submit to Congress, as a part of the homeland security or 
justice budget materials for each fiscal year after fiscal year 
2018, a consolidated funding display that identifies the 
funding source and funding requirements for the actions 
described in subsection (b)(1) within the Department of 
Homeland Security or the Department of Justice. The funding 
display shall be in unclassified form, but may contain a 
classified annex.
    (g) Semiannual Briefings.--
          (1) In general.--On a semiannual basis during the 5-
        year period beginning 6 months after the date of 
        enactment of this section, the Secretary and the 
        Attorney General shall, respectively, provide a 
        briefing to the appropriate congressional committees on 
        the activities carried out pursuant to this section.
          (2) Requirement.--Each briefing required under 
        paragraph (1) shall be conducted jointly with the 
        Secretary of Transportation.
          (3) Content.--Each briefing required under paragraph 
        (1) shall include--
                  (A) policies, programs, and procedures to 
                mitigate or eliminate impacts of such 
                activities to the National Airspace System;
                  (B) a description of instances where actions 
                described in subsection (b)(1) have been taken;
                  (C) a description of efforts to address 
                privacy, civil rights, and civil liberties 
                issues implicated by the actions allowed under 
                this section;
                  (D) how the Secretary and the Attorney 
                General have informed the public as to the 
                possible use of authorities under this section;
                  (E) a description of actions the Secretary 
                and the Attorney General have taken to inform 
                owners and operators of covered facilities of 
                their status under this section; and
                  (F) how the Secretary and the Attorney 
                General have engaged with Federal, State, and 
                local law enforcement agencies to implement and 
                use such authorities.
          (4) Unclassified form.--Each briefing required under 
        paragraph (1) shall be in unclassified form, consistent 
        with the needs of law enforcement agencies and national 
        security, but may be accompanied by an additional 
        classified briefing.
    (h) Rule of Construction.--Nothing in this section may be 
construed to--
          (1) vest in the Secretary or the Attorney General any 
        authority of the Secretary of Transportation or the 
        Administrator of the Federal Aviation Administration 
        under title 49, United States Code;
          (2) vest in the Secretary of Transportation or the 
        Administrator of the Federal Aviation Administration 
        any authority of the Secretary or the Attorney General 
        under this title or title 14, United States Code;
          (3) vest in the Secretary of Homeland Security any 
        authority of the Attorney General under this title; and
          (4) vest in the Attorney General any authority of the 
        Secretary of Homeland Security under this title.
    (i) Termination.--
          (1) In general.--Except as provided in paragraph (2), 
        the authority to carry out this section with respect to 
        the covered facilities or assets shall terminate on the 
        date that is 5 years after the date of enactment of 
        this section.
          (2) Extension.--The President may extend by 180 days 
        the termination date described in paragraph (1) if, not 
        later than 45 days before the termination date 
        described in paragraph (1), the President certifies to 
        Congress that such extension is in the national 
        security interest of the United States.
    (j) Scope of Authority.--Nothing in this section shall be 
construed to provide the Secretary or the Attorney General with 
additional authorities beyond those described in subsections 
(a), (b)(1), and (k)(3)(C)(iii).
    (k) Definitions.--In this section:
          (1) The term ``appropriate congressional 
        committees''' means--
                  (A) the Committee on Homeland Security and 
                Governmental Affairs, the Committee on 
                Commerce, Science, and Transportation, and the 
                Committee on the Judiciary of the Senate; and
                  (B) the Committee on Homeland Security, the 
                Committee on Transportation and Infrastructure, 
                the Committee on Energy and Commerce, and the 
                Committee on the Judiciary of the House of 
                Representatives.
          (2) The term ``budget'', with respect to a fiscal 
        year, means the budget for that fiscal year that is 
        submitted to Congress by the President under section 
        1105(a) of title 31, United States Code.
          (3) The term ``covered facility or asset'' means any 
        facility or asset that--
                  (A) is identified by the Secretary or the 
                Attorney General, 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, 
                territorial seas, or navigable waters of the 
                United States); and
                  (C) directly relates to--
                          (i) a mission authorized to be 
                        performed by the Department, consistent 
                        with governing statutes, regulations, 
                        and orders issued by the Secretary, 
                        relating to--
                                  (I) security operations by 
                                the United States Coast Guard 
                                and U.S. Customs and Border 
                                Protection, including securing 
                                facilities, aircraft, and 
                                authorized vessels, whether 
                                moored or underway;
                                  (II) United States Secret 
                                Service protection operations 
                                pursuant to section 3056 and 
                                3056A of Title 18, United 
                                States Code; or
                                  (III) protection of 
                                facilities pursuant to section 
                                1315 of title 40, United States 
                                Code, considered to be high-
                                risk or assessed to be a 
                                potential target for unlawful 
                                unmanned aircraft activity;
                          (ii) a mission authorized to be 
                        performed by the Department of Justice, 
                        consistent with governing statutes, 
                        regulations, and orders issued by the 
                        Attorney General, relating to--
                                  (I) personnel protection 
                                operations by the Federal 
                                Bureau of Investigation and the 
                                United States Marshals Service, 
                                including the protection of 
                                Federal jurists, court 
                                officers, witnesses, and other 
                                persons in the interests of 
                                justice, as specified in 
                                section 566(e) of title 28, 
                                United States Code;
                                  (II) penal, detention, and 
                                correctional operations 
                                conducted by the Federal Bureau 
                                of Prisons considered to be 
                                high-risk or assessed to be a 
                                potential target for unlawful 
                                unmanned aircraft activity; or
                                  (III) protection of the 
                                buildings and grounds leased, 
                                owned, or operated by or for 
                                the Department of Justice 
                                identified as essential to the 
                                function of the Department of 
                                Justice, and the provision of 
                                security for Federal courts, as 
                                specified in section 566(a) of 
                                title 28, United States Code, 
                                considered to be high-risk or 
                                assessed to be a potential 
                                target for unlawful unmanned 
                                aircraft activity; and
                          (iii) a mission authorized to be 
                        performed by the Department of Homeland 
                        Security or the Department of Justice, 
                        acting together or separately, 
                        consistent with governing statutes, 
                        regulations, and orders issued by the 
                        Secretary or the Attorney General, 
                        respectively, relating to--
                                  (I) National Special Security 
                                Events and Special Event 
                                Assessment Rating events;
                                  (II) upon the request of a 
                                State's governor or attorney 
                                general, providing support to 
                                State, local, or tribal law 
                                enforcement authorities to 
                                ensure protection of people and 
                                property at mass gatherings, 
                                where appropriate and within 
                                available resources;
                                  (III) active Federal law 
                                enforcement investigations, 
                                emergency responses, or 
                                security operations; or
                                  (IV) in the event that either 
                                the Department of Homeland 
                                Security or the Department of 
                                Justice has identified a 
                                national security threat 
                                against the United States and 
                                the threat could involve 
                                unlawful use of an unmanned 
                                aircraft, responding to such 
                                national security threat.
          (4) The terms ``electronic communication'', 
        ``intercept'', ``oral communication'', and ``wire 
        communication'' have the meanings given those terms in 
        section 2510 of Title 18, United States Code.
          (5) The term ``homeland security or justice budget 
        materials'', with respect to a fiscal year, means the 
        materials submitted to Congress by the Secretary and 
        the Attorney General in support of the budget for that 
        fiscal year.
          (6) For purposes of subsection (a), the term 
        ``personnel'' means--
                  (A) officers and employees of the Department 
                of Homeland Security or the Department of 
                Justice; or
                  (B) individuals employed by contractors of 
                the Department of Homeland Security who are 
                subject to the supervision, control, or 
                direction of the Department and are assigned by 
                the Department to perform the duties described 
                in subsection (a) in accordance with 
                regulations or guidance established under 
                subsection (d).
          (7) The terms ``unmanned aircraft'' and ``unmanned 
        aircraft system'' have the meanings given those terms 
        in section 331 of the FAA Modernization and Reform Act 
        of 2012 (49 U.S.C. 40101 note).
    (l) Department of Homeland Security Assessment.--
          (1) Report.--Not later than 1 year after the date of 
        the enactment of this section, the Secretary shall 
        conduct, in coordination with the Attorney General and 
        the Secretary of Transportation, and submit an 
        assessment to the appropriate congressional committees, 
        including--
                  (A) an evaluation of the threat from unmanned 
                aircraft systems to United States critical 
                infrastructure (as defined in this Act) and to 
                domestic large hub airports (as defined in 
                section 40102(a)(29) of title 49, United States 
                Code);
                  (B) an evaluation of current Federal and 
                State, local, or tribal law enforcement 
                authorities to counter the treat identified in 
                subparagraph (A);
                  (C) an evaluation of the knowledge of, 
                efficiency of, and effectiveness of current 
                procedures and resources available to owners of 
                critical infrastructure and domestic large hub 
                airports when they believe a threat from 
                unmanned aircraft systems is present and what 
                additional actions, if any, the Department 
                could implement under existing authorities to 
                assist these entities to counter the threat 
                identified in subparagraph (A);
                  (D) an assessment of what, if any, additional 
                authorities the Department needs to counter the 
                threat identified in subparagraph (A); and
                  (E) an assessment of what, if any, additional 
                research and development the Department needs 
                to counter the threat identified in 
                subparagraph (A).
          (2) Unclassified form.--The report required under 
        paragraph (1) shall be submitted in unclassified form, 
        but may contain a classified annex.

                                  [all]
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