Drone Law and Policy

Global Development, Risks, Regulation and Insurance

Anthony A. Tarr, Julie-Anne Tarr, Maurice Thompson, Jeffrey Ellis, Anthony A. Tarr, Julie-Anne Tarr, Maurice Thompson, Jeffrey Ellis

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000422290
• Edition: 1
• Topic: Technology & Engineering
• Subtopic: Aviation
• Index: Technology & Engineering

Drone Law and Policy describes the drone industry and its evolution, describing the benefits and risks of its exponential growth. It outlines the current and proposed regulatory framework in Australia, the United States, the United Kingdom and Europe, taking into consideration the current and evolving technological and insurance landscape.

This book makes recommendations as to additional regulatory and insurance initiatives which the authors believe are necessary to achieve an effective balance between the various competing interests. The 23 chapters are written by global specialists on crucial topics, such as terrorism and security, airport and aircraft safety, maritime deployment, cyber-risks, regulatory oversight, licensing, standards and insurance.

This book will provide authoritative reference and expert guidance for regulators and government agencies, legal practitioners, insurance companies and brokers globally, as well as for major organisations utilising drones in industrial applications.

Part C
Risks

7
Global terrorism and security

Jeffrey Ellis and Robert S. Barrows

Introduction

Terrorist and criminal misuse of unmanned aerial vehicles (interchangeably UAS, UAV and drone) is a major concern of the military, police and intelligence communities. As is the case with the development of an overall regulatory scheme for authorised UAV operations,¹ the law and law enforcement are struggling to keep pace with this new technology and the purposes for which it can be used and misused. While there is always an initial inclination to use existing law and law enforcement techniques to respond to issues related to new technologies and the threats they pose, there are also instances where the law and law enforcement must adapt to both authorised and unauthorised use and misuse of technological advancements.

1 See Chapter 4 Drones and Law Enforcement and Chapter 13 Regulatory Overview.

This chapter focuses on the issues arising out of intentional misuse of UAV technology. It provides an overview of the nature of the threat posed by terrorist and criminal misuse of drones and what is being done to prevent such attacks. The emphasis is on (1) publicly available information describing the terrorist threat and capabilities (2) and non-sensitive information relevant to the technology required to detect potentially malicious drones as well as the means to interdict and mitigate this threat and (3) the legal and jurisdictional authority to implement these measures.

Military development of UAVs ²

2 For a detailed description of the history of military development and use of drones, see Ron Bartsch, James Coyne and Katherine Gray, Drones in Society (Routledge 2017), chapter 2 ‘From Battlefield to Backyard’, 19–34.

The starting point for understanding the nature of terrorist threats related to the use of drones and the risks they pose is the way the military has advanced this technology. Terrorists pick up on these developments and look to exploit it for nefarious purposes just like they turned airplanes and the means of peaceful commerce into flying bombs on 9/11. Terrorists also learn from military tactics and strategic capabilities and, in this regard, they have witnessed American drone use during the so-called war on terror first hand and came away armed with knowledge that they tried to exploit. Military drone technology is quite advanced and has been used effectively in armed combat.

Military use of drones dates back to the First World War when Orville Wright and his company constructed an unmanned aircraft designed for military use and equipped with an explosive payload. It had a crude “guidance” system that relied upon a calculation of wind speed, direction, distance and the number of engine revolutions needed to take the unmanned aircraft to its target.³ It functioned by determining the amount of time to reach the target, the engine then shutting down and the aircraft plunging to the earth and detonating the explosives on board.⁴

3 See, for example, Larry Holzwarth, ‘The Story of the Kettering Bug, the World’s First Aerial Drone’ <https://historycollection.com/the-story-of-the-kettering-bug-the-worlds-first-aerial-drone/>.

4 National Museum of the United States Airforce, ‘Kettering Aerial Torpedo Bug’ (7 April 2015) <www.nationalmuseum.af.mil/Visit/Museum-Exhibits/Fact-Sheets/Display/Article/198095/kettering-aerial-torpedo-bug/>.

Military development continued after World War I, and during World War II both sides developed far more effective means of using unmanned aircraft to deliver explosive payloads. Nazi Germany developed the V-1 “flying bomb”⁵ to rain terror on London, while the British developed their own unmanned aircraft to support their war efforts.⁶

5 V-1 missile, German in full Vergeltungswaffen-1 (“Vengeance Weapon 1”), also popularly called flying bomb, buzz bomb, or doodlebug, German jet-propelled missile of World War II, the forerunner of modern cruise missiles. See, for example, Britannica, ‘V-1 Missile’ <www.britannica.com/technology/V-1-missileBundesarchiv,Bild146-1975-117-26/Lysiak/CC-BY-SA3.0>.

6 See, for example, War History Online, ‘The Early Days of Drones—Unmanned Aircraft from WW1 & WW11’ (12 May 2018) <www.warhistoryonline.com/military-vehicle-news/short-history-drones-aircraft.html>.

Following the war, military development of unmanned aircraft increased dramatically, and by 1952 the Australian Government Aircraft Factories had developed the technical expertise to construct a target drone called the Jindivik. That name is derived from an Aboriginal word meaning “the hunted one.”⁷ The drone’s performance was quite remarkable, being capable of high-speed flight ranging in altitude from 50 feet to 70,000 feet.⁸

7 D Crotty, ‘GAF Jindivik Target Aircraft in Museums Victoria Collections’ (2010) <https://collections.museumsvictoria.com.au/articles/3668>.

8 Australia’s Museum of Flight, ‘GAF Jindivik Mk.3B’ (N11806) (30 May 2005) <https://web.archive.org/web/20070830035113/www.museum-of-flight.org.au/site/index.php?option=com_content&task=view&id=39&Itemid=65>.

Over the next several decades, drone technology continued to develop, with an emphasis on using drones for military and intelligence surveillance. The United States took the lead in this area and developed a highly efficient drone called the Predator. It was equipped with cameras that provided operators with a 60-mile panorama from a platform that could stay airborne more or less permanently, with vehicles flown in 12-hour shifts.⁹ The Predator also played an instrumental role in both the lead up to and post incident response to the 9/11 attacks and foreshadowed the current state of drone warfare.

9 Mark Bowden, ‘How the Predator Drone Changed the Character of War’ (Smithsonian Magazine, November 2013) <www.smithsonianmag.com/history/how-the-predator-drone-changed-the-character-of-war-3794671/>.

Prior to 9/11,¹⁰ al Qaeda had been tied to the 1993 World Trade Center bombing and the 1998 bombings of two US embassies in Africa. Osama bin Laden was indicted for those attacks in the United States and efforts were undertaken to locate him in Afghanistan. It was ultimately agreed to use the Predator drone to provide surveillance in the search for bin Laden. The imagery provided by the Predator’s first flight was apparently quite detailed and subsequently described by the US Director of National Intelligence as “truly astonishing.”¹¹

10 The 11 September 2001 terrorist attacks upon the United States.

11 National Commission on Terrorist Attacks, ‘The 9/11 Commission Report’ (GPO 2004) chapter 6, 189, 190 <https://govinfo.library.unt.edu/911/report/911Report_Ch6.pdf>.

The surveillance imagery that was provided of Osama bin Laden has been stated to have shown the following:

[A] tall man in a white robe at Bin Laden’s Tarnak Farms compound outside Kandahar. After a second sighting of the “man in white” at the compound on September 28, intelligence community analysts determined that he was probably Bin Laden.¹²

12 ibid.

As detailed further in 9/11 Commission Report,¹³ various logistical and diplomatic considerations played into the analysis of this surveillance imagery and what to do in response to it. It was ultimately decided not to act due to the time lapse and uncertainty resulting from doing so.¹⁴ However, the lack of an immediate response capability spurred discussions as to whether the Predator could be equipped with hellfire missiles and used as an offensive weapon.¹⁵ The magnitude of the 9/11 attacks quickly silenced those wishing to proceed cautiously and, in that regard, it was only weeks after 9/11 that the Predator was outfitted with missile launching capability and this technological advancement was used to kill al Qaeda’s military commander in Iraq.¹⁶

13 <www.9-11commission.gov/report/911Report.pdf>.

14 ibid.

15 Warren Bass, ‘How the US Stumbled Into The Drone Era’ (Wall Street Journal, 24 July 2014) <www.wsj.com/articles/how-the-u-s-stumbled-into-the-drone-era-1406234812>.

16 ibid.

Thus, it came to be that the same drone that provided the passive surveillance information that some claimed should have enabled the United States to kill bin Laden and prevent the 9/11 attacks was transformed into a key offensive weapon in the United States’ response to those attacks. The effectiveness of this new technology in remote regions caused its use to become so prevalent that it has been reported that between 2010 and 2020, the United States conducted more than 14,000 drone strikes in Pakistan, Afghanistan, Yemen and Somalia.¹⁷ The staggering death toll from these strikes is reported to have been up to 16,000 people, including approximately 2,200 civilians and 450 children.¹⁸

17 See report prepared by The Bureau of Investigative Journalists <www.thebureauinvestigates.com/projects/drone-war>.

18 ibid.

The strategic use of these drone strikes as well as the collateral harm caused to innocent civilians has clearly been a factor in motivating responsive acts of terrorism and recruitment. However, from a legal perspective, it has also b...