Preventing Emerging Threats Act of 2018

To assist the Department of Homeland Security in preventing emerging threats from unmanned aircraft and vehicles, and for other purposes. 1. Short title This Act may be cited as the Preventing Emerging Threats Act of 2018 2. Protection of certain facilities and assets from unmanned aircraft (a) In general Subtitle A of title II of the Homeland Security Act of 2002 ( 6 U.S.C. 121 210G. Protection of certain facilities and assets from unmanned aircraft (a) Authority Notwithstanding section 46502 of title 49, United States Code, or sections 32, 1030, 1367 and chapters 119 and 206 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 people, facilities, or assets, to take, such actions as are described in subsection (b)(1) that are necessary to mitigate a credible threat (as defined by the Secretary or the Attorney General, in consultation with the Secretary of Transportation) that an unmanned aircraft system or unmanned aircraft poses to the safety or security 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, if necessary, 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 subsection (b)(1). (4) Coordination The Secretary and the Attorney General shall coordinate with the Administrator of the Federal Aviation Administration when subsection (b)(3) might affect aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, or the use of the airspace. (c) Forfeiture Any 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. (e) Privacy protection The regulations or guidance issued to carry out actions authorized under subsection (b) by the Secretary or the Attorney General, as the case may be, shall ensure that— (1) the interception or acquisition of, or access to, or maintenance or use of, 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 provisions of Federal law; (2) communications to or from an unmanned aircraft system are intercepted or acquired only to the extent necessary to support an action described in subsection (b)(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 1 or more safety or security functions of the Department of Homeland Security or the Department of Justice, respectively, or to investigate or prosecute a violation of law; 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 violation of law; (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 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 the guidance, policies, or procedures established to address privacy, civil rights, and civil liberties issues implicated by the action allowed under this section, as well as any changes or subsequent efforts that would significantly affect privacy, civil rights or civil liberties; (D) how the Secretary and the Attorney General have informed the public as to the possible use of authorities under this section; and (E) 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; (2) vest in the Secretary of Transportation or the Administrator of the Federal Aviation Administration any authority of the Secretary or the Attorney General; (3) vest in the Secretary of Homeland Security any authority of the Attorney General; and (4) vest in the Attorney General any authority of the Secretary of Homeland Security. (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 specified in subsection (k)(3) 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 (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 (3) The term covered facility or asset (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 one or more of— (i) the following missions authorized to be performed by the Department of Homeland Security, consistent with governing statutes, regulations, and orders issued by the Secretary, pertaining to— (I) security operations by the United States Coast Guard and U.S. Customs and Border Protection, including securing facilities, aircraft, and vessels, whether moored or underway and considered to be high-risk or assessed to be a target for unlawful unmanned aircraft activity; (II) United States Secret Service protection operations pursuant to sections 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 target for unlawful unmanned aircraft activity; (ii) the following missions authorized to be performed by the Department of Justice, consistent with governing statutes, regulations, and orders issued by the Attorney General, pertaining 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 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 considered to be high-risk or assessed to be a target for unlawful unmanned aircraft activity, and the provision of security for Federal courts, as specified in section 566(a) of title 28, United States Code; and (iii) the following missions 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, pertaining 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 to ensure protection of people and property at mass gatherings, where appropriate, within available resources, and without delegating any authority under this section to State, local, or tribal law enforcement; (III) active Federal law enforcement investigations, emergency responses, or security operations that are considered to be high-risk or assessed to be a target for unlawful unmanned aircraft activity; 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 where there is reason to believe that the threat could involve unlawful use of an unmanned aircraft, responding to such national security threat. (4) The terms electronic communication intercept oral communication wire communication (5) The term homeland security or justice budget materials (6) For purposes of subsection (a), the term personnel (A) officers and employees of the Department of Homeland Security or the Department of Justice; or (B) to the extent necessary and upon receiving appropriate training, individuals employed by contractors of the Department of Homeland Security or the Department of Justice who are subject to the supervision, control, or direction of the respective department and are assigned by that department to perform the duties described in subsection (a) in accordance with regulations or guidance established under subsection (d). (7) The terms unmanned aircraft unmanned aircraft system 49 U.S.C. 40101 (8) For purposes of this section, the term risk-based assessment (A) Potential impacts to the national airspace system, including potential effects on manned aircraft and unmanned aircraft systems, airport operations, infrastructure, and air navigation services related to the use of any system or technology for carrying out the actions described in subsection (b)(1). (B) Options for mitigating any identified impacts to the national airspace system related to the use of any system or technology, including minimizing when possible the use of any technology which disrupts the transmission of radio or electronic signals, for carrying out the actions described in subsection (b)(1). (C) Potential consequences of the impacts of any actions taken under subsection (b)(1) to the national airspace system and infrastructure if not mitigated. (D) The ability to provide reasonable advance notice to aircraft operators consistent with the safety of the national airspace system and the needs of law enforcement and national security. (E) The setting and character of any covered facility or asset, including whether it is located in a populated area or near other structures, whether the facility is open to the public, whether the facility is also used for nongovernmental functions, and any potential for interference with wireless communications or for injury or damage to persons or property. (F) Potential consequences to national security, public safety, or law enforcement if threats posed by unmanned aircraft systems are not mitigated or defeated. (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, 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 threat 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 of Homeland Security or the Department of Transportation 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. . (b) Clerical amendment The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 210F the following: Sec. 210G. Protection of certain facilities and assets from unmanned aircraft. . 3. Department of homeland security efforts to help protect individuals from vehicular terrorism (a) Definitions In this section— (1) the term emergency response providers 6 U.S.C. 101 (2) the term vehicular terrorism (b) Assessment Not later than 1 year after the date of enactment of this Act, the Secretary of Homeland Security shall— (1) assess the threat of vehicular terrorism and activities the Department of Homeland Security is undertaking to support emergency response providers and the private sector to prevent, mitigate, and respond to vehicular terrorism; and (2) based on the assessment conducted under paragraph (1), brief 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 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 on— (A) the findings of the assessment; and (B) a strategy to improve the efforts of the Department of Homeland Security to support emergency response providers and the private sector to prevent, mitigate, and respond to the threat of vehicular terrorism.

Summary: Preventing Emerging Threats Act of 2018 This bill amends the Homeland Security Act of 2002 to authorize the Department of Homeland Security (DHS) and the Department of Justice (DOJ) to authorize their personnel to act to mitigate a credible threat that an unmanned aircraft system or unmanned aircraft (i.e., drones) poses to the safety or security of facilities or assets, through a risk-based assessment. DHS may take actions to: detect, identify, monitor, and track the drone, without prior consent; warn the drone's operator; disrupt control of the drone, without prior consent; seize or exercise control of the drone; confiscate the drone; or use reasonable force, if necessary, to disable, damage, or destroy the drone. Any drone seized by DHS or DOJ is subject to forfeiture to the United States. DHS shall: (1) evaluate the threat from drones to U.S. critical infrastructure and to domestic large hub airports; and (2) assess the threat of vehicular terrorism and brief Congress on its findings and on a strategy to improve efforts to support emergency response providers and the private sector to prevent, mitigate, and respond to such threat.