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Last week, the Executive Order on Protecting the United States from Certain Unmanned Aircraft Systems (UAS) expanded the U.S.-China drone controversy to North Korea, Iran, and Russia.

The Order also provides the Secretary of Commerce with the authority to designate “any other foreign nation, foreign area, or foreign non-government entity engaging in long-term patterns or serious instances of conduct significantly adverse to the national or economic security of the United States,” in addition to China, North Korea, Iran, and Russia.

The purpose of the Order is to, “prevent the use of taxpayer dollars to procure UAS that present unacceptable risks and are manufactured by, or contain software or critical electronic components from, foreign adversaries, and to encourage the use of domestically produced UAS.” However, this Order is not necessarily a “cease-and-desist” order; instead, it requires federal agencies to review their “authority to cease” procuring, funding or contracting the “covered UAS” of such foreign adversaries within the next 60 days. A “covered UAS” includes a drone that:

  • is manufactured, in whole or in part, by an entity domiciled in an adversary country;
  • uses critical electronic components installed in flight controllers, ground control system processors, radios, digital transmission devices, cameras, or gimbals manufactured, in whole or in part, in an adversary country;
  • uses operating software (including cell phone or tablet applications, but not cell phone or tablet operating systems) developed, in whole or in part, by an entity domiciled in an adversary country;
  • uses network connectivity or data storage located outside the United States, or administered by any entity domiciled in an adversary country; or
  • contains hardware and/or software components used for transmitting photographs, videos, location information, flight paths, or any other data collected by the UAS manufactured by an entity domiciled in an adversary country.

The Order also requires federal agencies to inventory covered UAS that already are owned or operated by the agency, and to then report their existing security protocols. However, and particularly with respect to China, several federal agencies have already conducted this inventory and assessment. No later than 120 days after the inventory reports are completed, the Director of National Intelligence, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of the Office of Science and Technology Policy, and the heads of other agencies will review the reports and submit a security assessment to the President, including recommended mitigation steps for decreasing the risks associated with these UAS and whether any UAS’ use should be discontinued completely by federal agencies.

The Federal Aviation Administration (FAA) must also lay out restrictions on the use of UAS on or over critical infrastructure within 270 days of the Order; the FAA already has the power to issue a Temporary Flight Restriction (TFR). At present, TFRs can be requested only by national defense, national security, and federal intelligence departments and agencies. However, other government or private sector entities can, in the interest of national security, request those agencies to sponsor a TFR over critical infrastructure, (e.g., oil refineries and chemical facilities). The goal of the Order is perhaps to provide a direct line from private industry to the FAA.

We’ll see if the Order has staying power and the funding to support it. Stay tuned.