Department of Justice Policy on the Use of Unmanned Aircraft Systems (UAS), 9-95.100, Released November 2019

Background

(Released 11/27/19)

The Justice Department announced today the publication of its updated Policy on the Use of Unmanned Aircraft Systems. In light of advancements in unmanned aircraft system (UAS) technology, and lessons learned from the Federal Bureau of Investigation’s limited use of UAS, the Policy enables the Department of Justice’s law enforcement components to safely and responsibly employ UAS technology within a framework designed to provide accountability and protect privacy and civil liberties.

Department of Justice Policy on the Use of Unmanned Aircraft Systems (UAS), 9-95.100

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.[1]

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.[2]

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.[3]  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:

1. 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;
2. Review component proposals concerning approval levels for UAS operations and training and certification requirements;
3. Review component-level implementing policies;
4. Facilitate the annual summary of Department UAS operations;
5. Facilitate Department-wide efforts related to UAS procurement and training, in conjunction with relevant components and other departments and agencies, as appropriate;
6. 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
7. 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.

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