SAFER SKIES Act Gives States Power to Block Drone Risks
Across the United States, prisons and jails have experienced a steady rise in contraband being delivered by unmanned aerial systems (UAS)—most commonly known as drones— both inside secure perimeters and at locations designated for pickup during inmate transports. Drone contraband drops are routine at many detention and corrections facilities. They enable delivery of cellphones, narcotics, weapons, and other prohibited items but also increase risks to safety and security risks within a facility. Drones can also be used to watch facility routines, identify blind spots, and communicate with outside accomplices.
Historically, state, local, Tribal, and territorial (SLTT) law enforcement officers could detect suspicious flights, but they were constrained from active mitigation, such as disrupting the link, seizing control, or disabling the aircraft, by federal communications and airspace laws. Active counter‑UAS mitigation was largely restricted to certain federal agencies, primarily the U.S. Department of Justice (DOJ) and U.S. Department of Homeland Security (DHS) to protect “covered facilities or assets” by conducting detection, identification, monitoring, tracking, and mitigation actions in coordination with the Federal Aviation Administration (FAA). But SLTT agencies that operate detention and corrections facilities were not covered. So, they’ve faced legal risk if they attempted to jam, spoof, intercept, or otherwise disable a threatening drone.
What is the SAFER SKIES Act?
On December 17, 2025, Congress approved the SAFER SKIES Act in the FY26 National Defense Authorization Act (NDAA). The SAFER SKIES Act allows SLTT law‑enforcement agencies, after training and certification, to “take actions necessary to mitigate a credible threat” that a drone poses to people, facilities, assets, large‑venue events, critical infrastructure, or correctional facilities. Once the Act is enacted, SLTT agencies operating detention and corrections facilities will be able to detect, disrupt, seize, and/or disable drones presenting credible threats, but only after completing federally mandated training/certification and only using technologies from a federally authorized list. SLTT agencies must provide mandatory notifications to DOJ and DHS within 48‑hours of each mitigation action.
DOJ and DHS, in collaboration with other federal agencies, must issue implementing regulations within 180 days of enactment. These regulations will address training standards, compliance audits, and an approved technology list. This new authority provided to SLTT agencies will expire on December 31, 2031.
What You Need to Know
- Authorized Mitigation Actions for SLTT Agencies
Under SAFER SKIES Act, only SLTT law enforcement and correctional agencies that have completed training and certification through the designated national programs provided by the DOJ and DHS are permitted to take mitigation actions against drones that pose a credible threat. These threats may target people, facilities, assets, large-event venues, critical infrastructure, or correctional facilities.
The range of authorized mitigation actions includes the detection, identification, monitoring, and tracking of drones, using capabilities such as Remote ID broadcasts. Agencies may issue warnings to drone operators through permitted electromagnetic or other federally approved means. When necessary, and only with technologies listed on the joint federal authorized list (curated by DOJ, DHS, and other federal agencies), trained agencies may disrupt control links, seize control, confiscate, or disable and destroy drones that present credible threats.
2. Oversight and Reporting Requirements
Every mitigation action taken by an SLTT agency requires a secure notification to both the DOJ and DHS within 48 hours of the action taken. This report must include details such as the date, time, and location of the incident, a description of the threat, the capabilities and technologies used for mitigation, and the operational outcomes (i.e., whether the drone was seized or destroyed).
3. Forfeiture of Seized Drones
Drones that are seized by SLTT agencies under this new authority are subject to forfeiture, with the process governed by the law of the agency’s jurisdiction.
4. Penalties and Compliance Risks
The SAFER SKIES Act also adjusts penalties for people using drones to carry out unlawful or illegal actions relevant to detention and corrections facilities. Notably, individuals using a drone to introduce contraband into detention and correctional facilities will have an extra five years added to their prison sentence pursuant to 18 U.S.C. § 1791. Additionally, the use of a drone to facilitate the commission of other felonies results in an increased maximum sentence, either a doubling of the original term or an addition of five years, whichever is less.
There are important compliance provisions for SLTT to keep in mind as well. Agencies or individuals who conduct drone mitigation operations without the required federal coordination are subject to significant civil penalties. These include fines of up to $100,000 per violation, or the suspension of their counter-UAS authority. These penalties are enforceable through civil actions initiated by the DOJ.
Practical Guidance for Detention and Corrections Facilities
- Certification and approved technology are required before using counter-UAS measures. Agencies must complete DOJ and DHS certification and use only authorized technologies for mitigation activities.
- Correctional agencies should establish robust incident reporting, draft 48-hour notification templates, and implement secure DOJ/DHS reporting workflows. Plan evidence handling procedures and maintain chain of custody when seizing drones to support forfeiture and prosecution.
- Correctional agencies must set clear deconfliction protocols and coordinate with the FAA, local Air Traffic Control, and neighboring agencies to prevent interference with authorized flights like medical evacuations.
- Correctional agencies should consider aligning their budget proposals with opportunities such as the Byrne Justice Assistance Grant (Byrne JAG), the Community Oriented Policing Services (COPS), and Federal Emergency Management Agency (FEMA) Counter-UAS grants, which provide funding for UAS and counter-UAS purchases, operations, and training. These programs can assist correctional agencies in developing compliant counter-UAS initiatives and improving detection, tracking, and interagency coordination without excessive financial impact.
- For oversight, the SAFER SKIES Act requires biannual reports and compliance audits and careful documentation to show safe, lawful operations. Agencies thus should maintain comprehensive documentation to show compliance with safety and legal standards.
Please contact Maggie Arellano, Nick Morisani or any member of the Phelps litigation team if you have any questions or need advice or guidance.
