The Legal Aspects of Banning Chinese Drone Technology

A DJI drone flying over the Moroccan coastline. (Wikimedia/Elmekkaoui abdelghani, https://bit.ly/3aybIfG; CC BY-SA 4.0, https://creativecommons.org/licenses/by-sa/4.0/deed.en) In 2020, Chinese drone manufacturer and market-dominant Dajiang Innovations (DJI) donated at least 100 of its small unmanned aerial vehicles (UAVs) to more than 40 U.S. law enforcement and public safety departments and agencies across 22 states. DJI made the donations as part of what it calls its Disaster Relief Program , established in late 2019 to enhance the emergency response capabilities of public safety agencies. The goal of these specific donations, according to DJI, was to help with the monitoring of public health issues in the midst of the coronavirus pandemic—on its face, at least, a laudable goal.  But DJI’s donations reignited lingering questions about the risks of Chinese drone technology. These debates are just the tip of the larger clash developing between the U.S. and China over technology. These debates are just the tip of the iceberg of the technological battles developing between the U.S. and China, with various assertions of security and privacy vulnerabilities floating just below the surface and legal implications looming large underneath. Not surprisingly, the beneficiaries of these gifts from DJI were all too willing to accept them. Programs like Drone as First Responder , where U.S. police departments send out drones in advance of officers to respond rapidly and gain critical situational awareness, are popping up around the country with growing frequency. And there is no doubt that small UAVs can be a force multiplier for law enforcement and first responders. But not everyone is so sanguine about this claimed act of corporate largesse. Some public officials and others have questioned DJI’s motives and called for official federal inquiries into the drone giveaways, citing federal law enforcement warnings about information and national security risks with DJI drones and the company’s potential cooperation with, or at least susceptibility to, Chinese espionage efforts. Given the popularity of DJI’s products across private consumer and business markets, the concerns raised about its Disaster Relief Program are representative of a much larger debate emerging about Chinese drone technology specifically, and Chinese tech products in general.  DJI denies that it is engaged in any nefarious behavior and dismisses claims about national security risks as thin veils for protectionism. The company holds a dominant share of the small UAV market and faces little competition from domestic U.S. manufacturers, which, as Dawn Zoldi points out , has been identified in official policy as a national security risk in and of itself. Some commentators have echoed DJI’s denials, describing security concerns as unsubstantiated rumors. However, as is often the case, the truth likely falls somewhere in the middle—and that alone should be cause for a cautious and deliberate approach.  Make no mistake about it: The Chinese government is in the business of collecting data at scale, and the United States is its prime target. Federal government intelligence and national security assessments consistently note that China presents a persistent and significant cyber espionage threat aimed at, among other objectives, bolstering its civil-military industrial development, gaining economic advantage, and supporting its attack capabilities against core military and critical infrastructure systems. And unlike traditional espionage activities, which focus on stealing government secrets, China routinely targets corporations in furtherance of economic espionage and intellectual property theft. It also considers every U.S. citizen as a potential collection target. As FBI Director Christopher Wray has stated regarding China’s threat to national security, “If you are an American adult, it is more likely than not that China has stolen your personal data.” These U.S. assessments call out the very real “potential for Chinese intelligence and security services to use Chinese information technology firms as routine and systemic espionage platforms ”—pointing, in particular, to China’s 2017 National Intelligence Law, the latest in a series of laws meant to formalize and strengthen the state’s intrusive security activities. Under the 2017 law and other components of China’s domestic legal framework, the Chinese government can arguably compel Chinese businesses to cooperate with and provide access to intelligence and security services. Whether these laws sweep as broadly as some claim is open to debate, but the lack of effective oversight structures and institutions is not. There should be little doubt that the relationship between the Chinese security services and Chinese industry is fundamentally different than in the United States and not hindered in any meaningful way by legal limitations or privacy concerns. This is certainly a concerning backdrop for assessing the security concerns about DJI and other Chinese drone manufacturers. In response to similar accusations leveled against a range of Chinese technology products and services, the Trump administration aggressively deployed a mix of statutory and regulatory measures to restrict or outright ban Chinese companies such as Huawei, ByteDance (which owns TikTok) and Tencent (which owns WeChat) from doing business in the U.S. or with U.S. companies. This trend doesn’t portend well for DJI. Unfortunately, international law offers little protection or remedies against the risks presented by Chinese drone technology. First, and simply put, international law does not prohibit espionage. It is a ubiquitous activity engaged in by all states. As former Director of National Intelligence James Clapper said regarding China’s breach of the Office of Personnel Management and the exfiltration of gigabytes worth of sensitive data in 2015, “It was simply stolen—so that’s a passive intelligence collection activity, just as we do.” States certainly have a variety of tools available to counter espionage efforts, but invoking international law violations does not figure among them—not even in the case of economic espionage. Second, it is not even clear that compelling Chinese companies to share customer data with the government constitutes espionage in the traditional sense or runs counter to any U.S. domestic laws—a fact that would also complicate efforts to pursue espionage-related prosecutions in U.S. courts. Finally, China’s security laws might have international human rights law implications, but China shows little interest in recognizing, let alone abiding by, its human rights obligations.  Options grounded in domestic U.S. law are a different matter. Enough concerns have already been raised about DJI specifically and Chinese drone technology in general to motivate several federal departments and agencies to take action. For example, the U.S. Army banned the use of Chinese drones in 2017, citing security concerns documented in classified reports, and the Department of Defense followed suit the next year. In 2019, the U.S. Department of Homeland Security issued an advisory that warned U.S. companies against using Chinese drones—and more recently, the Department of the Interior  grounded its entire fleet of DJI drones notwithstanding the company’s production of models specifically configured to meet the department’s security requirements. The Department of Justice also recently banned the use of agency grants to purchase drones and other unmanned aerial systems from foreign groups “subject to or vulnerable to extrajudicial direction from a foreign government.” But the federal government is not likely to stop with these limited policy bans. Congress has already taken some steps to check DJI’s ability to operate in the U.S., and it is considering more. It effectively cemented the Defense Department ’s ban into law in the National Defense Authorization Act (NDAA) for Fiscal 2020 . Congress has also flirted with broader bans, such as the draft American Security Drone Act (ASDA) , which would bar any federal agency from acquiring Chinese drones or drones made with Chinese components, and would also codify the different policy prohibitions on using federal grant money to buy Chinese drones or components—an aspect of the law clearly aimed at curbing use of the technology at the state and local levels. And given the growing overlap of individual privacy concerns, big-data aggregation, and national security, it is not too hard to imagine executive branch actions to ban Chinese drone technology more broadly, along with the Trump administration’s attempts to limit American access to TikTok and WeChat.  Thus far, DJI has opted against challenging these limited actions in court, preferring the route of public relations and lobbying to stem the tide. Those efforts seemed to bear some fruit. At the last minute, Congress removed the ASDA from the NDAA for Fiscal 2021, which some observers attribute to Chinese lobbying efforts. The reprieve was somewhat ephemeral, however. In December 2020, the End-User Review Committee (ERC)—an interagency group composed of representatives from the Commerce, Sta
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