Counter-drone technology: is it legal in Canada?

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Many airports around the world (for example, San Francisco International Airport) are considering the installation of a drone detection system. These systems alert air traffic services and authorities of nearby drones in flight that may endanger aircraft on approach and/or departure. While technology that assists in the detection of drones is likely legal in Canada, the use of counter-drone technology to disrupt or interfere with drones in flight is generally illegal. This post will explore the most common counter-drone technologies and the statutory basis for their illegality in Canada.

Three of the most common (and all illegal) counter-drone measures include: 1) jamming devices, 2) software exploitation devices, and 3) physical disruption.

  • Jamming Devices

Jamming devices operate by interfering with, or ‘jamming’, the radiofrequency between the controller and the drone and/or the GPS function of the drone that relays its location. If successful, jamming devices often render the drone inoperative.

Sections 4(4) and 9(1)(b) of the Radiocommunication Act prohibit the use, possession, manufacturing, importing, distribution, leasing, offering for sale and sale of jamming devices in Canada. Individuals charged under these provisions can face a fine of up to $5,000 and/or imprisonment for up to one year. Corporations may face fines of $25,000, and in some cases, several millions of dollars per offence.

Though generally illegal for civilians, the RCMP may possess and operate jammers in specific circumstances. On July 2, 2019, an exemption order for RCMP officers entitled the Radiocommunication Act Exemption Order [Jammers – Royal Canadian Mounted Police] came into force. Similar to the exemption that was previously in force since 2015, this exemption allows RCMP officers who are required, as part of their duties or training, to install, use, possess, manufacture or import a jammer for purposes like ensuring national security, public safety and the investigation of offences. Before use, RCMP officers must notify the Minister of Industry. Further, officers must maintain records of all usage and make every reasonable effort to limit the jammer’s interference with other radiocommunications.

  • Software Exploitation Devices

Software exploitation devices target the drone’s software directly, and often allow the attacker to take control of the drone and to obtain access to data from the drone.

Section 342.1 and Section 342.2 of the Criminal Code prohibit counter-drone technology that exploits the drone’s software. Under these sections, it is unlawful to intercept or cause an interception of any function of a computer system and to make, possess, sell, offer for sale, import, obtain for use, distribute or make available a device that is designed or adapted primarily to intercept any function of a computer system. Drones and the associated equipment likely constitute a “computer system” for the purposes of these provisions, rendering these devices unlawful. Penalties under these sections range from summary conviction to an indictable offence with imprisonment of up to 10 years.

  • Physical Disruption

Physical disruption devices include objects like lasers, nets and projectiles that are used to physically interfere with or intercept a drone.

While these devices are not expressly prohibited by regulation or statute, their use likely constitutes a trespass to the property of the drone owner. There have yet to be a judicial decisions in Canada to confirm this interpretation. Further, it is unclear how a court would handle a case where a drone conducted an unauthorized flight over private property and the property owner used a physical disruption method to interrupt the drone’s flight.

Conclusion

As more airports and large private property owners seek to protect their property and exclude drones from the nearby skies, the counter-drone technology industry is likely to continue to advance. Regulators will need to take a serious look at the legality of these measures and provide guidance for property owners of all kinds.