|9-95.200||Preventing Threats Act of 2018|
|9-95.300||Technology to Detect and Mitigate Unmanned Aircraft Systems|
9-95.100 - Department of Justice Policy on the Use of Unmanned Aircraft Systems
The Department of Justice seeks to leverage technological advances in pursuit of its mission to protect the public and enforce the laws. In recent years, Unmanned Aircraft Systems (UAS) have rapidly evolved to become a paradigm-shifting technology with far-reaching societal impacts. Among many other things, UAS are now a very promising tool for enhancing public safety and security. The Department’s own use of UAS, to date, demonstrates their utility and potential. Properly deployed, UAS can reduce risks to law enforcement officers and the public, while minimizing costs and increasing efficiency when compared to manned aircraft and other alternative tools. UAS augment the ability of federal law enforcement officers to conduct a wide range of critical missions, including search and rescue, disaster relief, tactical-entry support, and fixed-site security.
In order to harness these benefits while guarding against associated risks, it is the policy of the Department to utilize UAS in an appropriate and responsible manner that advances the Department’s mission, promotes public safety, and protects privacy and civil liberties. This Department of Justice Policy on the Use of Unmanned Aircraft Systems (the “Policy”) aims to facilitate the Department’s use of UAS within a framework designed to provide appropriate oversight, accountability, and transparency.
Applicability. This Policy provides foundational standards governing the use of UAS by Department components and supersedes the 2015 Department of Justice Policy Guidance – Domestic Use of Unmanned Aircraft Systems (UAS). The Deputy Attorney General may, at any time, modify or supplement this Policy, including by providing additional requirements or guidance for operational deployment, training, reporting, procurement, coordination mechanisms, and other matters.
Compliance with Law. Consistent with the Department’s commitment to the rule of law and the protection of privacy and civil liberties, the Department’s use of UAS will comply with all applicable provisions of the Constitution, including the Fourth Amendment’s protection against unreasonable searches and seizures, and other laws and regulations, including regulations issued by the Federal Aviation Administration (FAA). Additionally, Department personnel may never use UAS to engage in discrimination that runs counter to the Department’s anti-discrimination policies or other anti-discrimination laws.
Scope of Use. The Department will only use UAS in connection with properly authorized investigations and activities. The scope of authorized investigations and activities is defined by applicable statutory authorities, rules and regulations, Attorney General Guidelines, and other policies and guidance.
Approvals. Department components must promote meaningful oversight by ensuring that all UAS operations are approved at an appropriate level. The appropriate approval levels should be tailored to the particular operational and tactical needs of the component’s UAS missions. Prior to implementation, a component’s approval levels must be approved by the Deputy Attorney General to ensure that UAS are deployed responsibly. Any subsequent change in approval levels must be approved in the same manner.
Access to Airspace. In addition to basic compliance with FAA regulations, Department components will work with the FAA to develop and implement plans and procedures to provide any necessary specialized air traffic and airspace management support, including expedited FAA operational waivers and authorization, deconfliction, tailored operational security measures, and harmonization with UAS threat mitigation.
Training. The Deputy Attorney General will approve a minimum UAS training standard applicable to all components. That standard will capture the core competencies for personnel engaged in UAS operations across the Department.
Each component must also develop and implement additional training and certification requirements tailored to that component’s missions. These additional requirements must be approved by the Deputy Attorney General. Additionally, Department personnel using UAS or approving the use of UAS must receive training on the relevant legal and policy requirements, including this Policy. Only personnel certified by their component as having completed these requirements may operate UAS.
Tracking and Reporting. The Deputy Attorney General will issue requirements for components to track and report relevant information pertaining to UAS operations. These requirements will apply to all uses of UAS by the Department, including where the Department provides UAS support to State, Local, Territorial, Tribal, or other Federal agencies (collectively, “other agencies”) or where the Department requests and receives UAS support from other agencies.
At a minimum, each component will provide to the Office of the Deputy Attorney General and the Office of Legal Policy an annual report summarizing that component’s UAS operations during the previous fiscal year. This annual report will include a brief description of each type or category of mission flown; the number of times the component provided assistance to other agencies, as well as the purpose(s) for that assistance; and the privacy review conducted for the component’s UAS operations, as discussed further below. Without revealing law enforcement, national security, or other information protected from disclosure, each of the components’ annual reports will be consolidated into a publicly releasable summary of Department-wide UAS operations. This publicly releasable summary will promote transparency, ensuring the public is informed about the Department’s UAS operations in a manner consistent with the needs of law enforcement and national security.
Stakeholder Engagement. To the extent appropriate and helpful, Department components may engage external stakeholders concerning the Department’s use of UAS, consistent with the protection of law enforcement, national security, and other information protected from disclosure. For purposes of this Policy, “external stakeholders” refers primarily to State, Local, Territorial, and Tribal law enforcement agencies, but could include other external stakeholders, as appropriate. For example, a component using UAS to monitor the perimeter of a secure facility in an urban environment may find it helpful to engage with local law enforcement authorities and other community stakeholders.
Protecting Privacy and Civil Liberties. In determining whether and how to utilize cameras and other sensors associated with UAS, Department and component personnel (described in the paragraph below) will assess the potential intrusiveness and impact on privacy and civil liberties, which will be balanced against the relevant governmental interests. Consistent with applicable laws and requirements, including the E-Government Act of 2002, and to ensure the protection of privacy and civil liberties, the Department will only collect information from UAS sensors, and will only use, retain, or disseminate information obtained from such UAS sensors, for a properly authorized purpose.
Senior Component Officials for Privacy will be responsible for conducting, in a manner approved by the Department’s Chief Privacy and Civil Liberties Officer, an assessment of the component’s overall use of UAS and associated sensors prior to deployment of new UAS technology. Additionally, Senior Component Officials for Privacy must ensure that their component completes all appropriate privacy documentation and conducts annual privacy reviews of the component’s use of UAS to ensure compliance with existing laws, regulations, and policies relating to privacy and civil liberties and, where appropriate, make recommendations to the Deputy Attorney General and the Office of Legal Policy consistent with applicable privacy and civil liberty protections. Components will follow existing procedures to review, investigate, and address privacy and civil liberties complaints.
Data Retention. The Department will not retain information collected using UAS that may contain personally identifiable information for more than 180 days, unless the retention of information is determined to be necessary for an authorized purpose or is maintained in a Privacy Act system of records. Data collected by UAS that is retained must be maintained and safeguarded in accordance with applicable Federal laws, Executive Orders, directives, policies, regulations, standards, and other guidance. These authorities ensure that Department personnel with access to such data follow practices that are consistent with the protection of privacy and civil liberties. Moreover, components must comply with the Federal Records Act and ensure that appropriate records retention schedules are in place for records generated through use of UAS. Use of all Department information systems, which may include UAS component parts, may be monitored, recorded, and subjected to audit according to Department policy.
Procurement. UAS component parts may constitute Information Technology (IT) capable of processing, storing, or transmitting information. The procurement of IT must comply with applicable laws, policies, and regulations, including those administered by the Office of the Chief Information Officer. The Department ensures appropriate security and privacy protections for data and IT through the risk-based Department Cybersecurity Program and effective IT management. This includes oversight of acquisition and cybersecurity risks and supply chain risk management. Moreover, before authorizing State, Local, Territorial, or Tribal agencies to use Federal grant funding to purchase or use UAS, components must ensure that the grant recipient has in place policies and procedures designed to safeguard privacy and civil liberties and mitigate cybersecurity risks.
Implementing Policies. Components seeking to use UAS will implement the standards and requirements of this Policy in the context of their individual operating environments by issuing, with notice to the Deputy Attorney General and the Office of Legal Policy, component-specific UAS policies that are consistent with this Policy and all applicable law. At a minimum, a component-specific UAS policy will address component requirements for training and certification, tracking and reporting of UAS missions, approvals of UAS operations, cooperation with the FAA on access to airspace and related operational matters, and the protection of privacy and civil liberties.
Internal Coordination. The Office of Legal Policy chairs the Department-wide UAS Working Group. Under the direction of the Deputy Attorney General, the UAS Working Group provides a forum to coordinate and discuss matters relating to the use of UAS. In furtherance of this Policy, and in consultation with the UAS Working Group to the extent appropriate, the Office of Legal Policy will direct and coordinate the following functions:
- Advise the Deputy Attorney General on the creation and/or approval of the Department-wide minimum UAS training standard and the tracking and reporting requirements addressed in this Policy, and any additional requirements for operational deployment, training, procurement, and other related matters;
- Review component proposals concerning approval levels for UAS operations and training and certification requirements;
- Review component-level implementing policies;
- Facilitate the annual summary of Department UAS operations;
- Facilitate Department-wide efforts related to UAS procurement and training, in conjunction with relevant components and other departments and agencies, as appropriate;
- Promote and share best practices on the use of UAS across Department components and with State, Local, Territorial, and Tribal law enforcement agencies, as appropriate; and
- Recommend changes or improvements to this Policy.
Internal Policy Only. This Policy applies to Department components and employees and is intended only to improve internal management of the Department of Justice. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.
 Until the Deputy Attorney General approves a Department-wide minimum training standard and, as discussed below, tracking and reporting requirements, components may operate UAS in compliance with existing component-specific policies relating to training, tracking, and reporting. Once Department-wide requirements have been issued for training, tracking, and reporting, previously issued component-specific policies may remain in place to the extent that they are consistent with the Department-wide requirements or are otherwise modified to ensure compliance with the Department-wide requirements within a reasonable time.
 See supra note 1.
 The UAS Working Group includes representatives from the Federal Bureau of Investigation, the Drug Enforcement Administration, the United States Marshals Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Bureau of Prisons, the Office of the Deputy Attorney General, the Office of Legal Policy, the National Security Division, the Criminal Division, the Executive Office for United States Attorneys, the Office of Justice Programs, the Office of Community Oriented Policing, the Office of Privacy and Civil Liberties, the Office of the Chief Information Officer, and the Office of Legislative Affairs.
9-95.200 - Preventing Threats Act of 2018
The Preventing Emerging Threats Act of 2018 (codified at 6 U.S.C. § 124n) (“the Act”) authorizes the Department to engage in certain counter-UAS (“C-UAS”) activities that might otherwise violate relevant provisions of federal law, namely 49 U.S.C. § 46502 (aircraft piracy), 18 U.S.C. § 32 (destruction of aircraft), 18 U.S.C. § 1030 (computer fraud and abuse), 18 U.S.C. § 1367 (interference with the operation of a satellite), and chapters 119 (interception of communications) and 206 (pen registers and trap and trace devices) of Title 18. The Act authorizes such actions where taken to mitigate a credible threat posed by a UAS to a “covered facility or asset” designated by the Attorney General according to the process set out in the Act. See 6 U.S.C. § 124n (a)(1). The designated facility or asset must relate to one of the statutorily enumerated missions authorized to be conducted by the Department. Id. (k)(3). Moreover, the Act requires the Attorney General to issue guidance implementing the requirements of the Act. Id. (d)(1). The Attorney General’s Guidance regarding “Department Activities to Protect Certain Facilities or Assets from Unmanned Aircraft and Unmanned Aircraft Systems” (“the Guidance”) was approved on April 13, 2020, and is available at https://www.justice.gov/ag/page/file/1268401/download.
The Guidance governs all of the Department’s C-UAS activities authorized under the Act, instructing DOJ components on: (1) the processes and standards for seeking the Department’s approval for deploying protective measures; (2) the legal framework for exercising those measures; (3) requirements to protect privacy and civil liberties; and (4) other requirements, including the need for component-level policies, interagency and inter-departmental coordination, and procurement and training. The Department developed and coordinated the Guidance with the Department of Transportation, and the Guidance ensures coordination with the Federal Aviation Administration when any C-UAS action authorized to be taken under the Act might affect aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, and the use of the airspace.
Any C-UAS actions taken by DOJ components under the Act must be carried out consistent with the Act, the Guidance, and component-level policies and guidance.
9-95.300 - Technology to Detect and Mitigate Unmanned Aircraft Systems
On August 17, 2020, the Department of Justice, Federal Aviation Administration, Federal Communications Commission, and Department of Homeland Security issued an advisory guidance document titled, “Advisory on the application of Federal Laws to the Acquisition and Use of Technology to Detect and Mitigate Unmanned Aircraft Systems” (“the Advisory”). The Advisory is intended to help non-federal public and private entities better understand the federal laws and regulations that may apply to the use of capabilities to detect and mitigate threats posed by unmanned aircraft system operations, including provisions of federal criminal law. The Advisory does not address state or local laws that may apply, and entities should further consider the impacts such technology could have on privacy, civil liberties, and civil rights. The Advisory can be found at https://www.justice.gov/file/1304841/download.
[added August 2020]