Fly-by-night: FBI's surveillance air force

Last week in the Twin Cities, local media began buzzing about a “mysterious Cessna” circling the metropolitan area. The Star Tribune reported on it Friday, posting the plane’s flight-tracker data that showed continuous loops over the Mall of America and other major retail locations in the area during the two-hour flight. It came to light when an aviation buff decided to look into the flight and discovered that the plane was leased to a non-existent Virginia company:


Bearing the call sign N361DB, the plane is one of three Cessna 182T Skylanes registered to LCB Leasing of Bristow, Va., according to FAA records. The Virginia secretary of state has no record of an LCB Leasing. Virtually no other information could be learned about the company.

Zimmerman’s curiosity might have ended there if it weren’t for something he heard from his aviation network recently: A plane registered to NG Research — also located in Bristow — that circled Baltimore for hours after recent violent protests there was in fact an FBI plane that’s part of a widespread but little known surveillance program, according to a report by the Washington Post.

Similar flights have since been spotted near Chicago, Boston and in California, according to the American Civil Liberties Union. The ACLU has filed several Freedom of Information Act requests for more information.

It believes the planes use cameras and infrared imaging technology to photograph people and vehicles in a broad swath of the city; technology to sweep up cellphone data from a plane also exists, but it’s not clear if the FBI flights use it.

The FBI would make no comment at the time, but the Associated Press reports this morning that the agency operates its own covert surveillance air force, including the Minneapolis-area fly-overs. They use shell companies designed to hide their operation, although obviously that didn’t work out so well:

The FBI is operating a small air force with scores of low-flying planes across the country carrying video and, at times, cellphone surveillance technology — all hidden behind fictitious companies that are fronts for the government, The Associated Press has learned.

The planes’ surveillance equipment is generally used without a judge’s approval, and the FBI said the flights are used for specific, ongoing investigations. In a recent 30-day period, the agency flew above more than 30 cities in 11 states across the country, an AP review found.


What could those “specific, ongoing investigations” be? The Twin Cities hasn’t had a Ferguson or Baltimore situation arise, so that wouldn’t be a likely concern. The obvious answer would be counter-terrorism operations, especially given the specific threat made by al-Shabaab to the Mall of America and the recruitment activity here for both al-Shabaab and ISIS.

That might explain the secrecy too, at least in part, but this seems like a clumsy way to go about covert surveillance. Low-flying planes will eventually draw attention from aviation buffs like John Zimmerman, and the modern data age makes tracking down planes all too easy. Even then, it might have remained at least somewhat covert if the FBI hadn’t put up flights over riots in Baltimore and Ferguson, two explosive situations where “covert” surveillance was bound to be noticed — and where the FBI’s normal jurisdiction doesn’t reach anyway. “Any FBI aviation support to a local law enforcement agency must receive high-level approvals,” the bureau said in a statement after their role in riot surveillance was made public. That suggests high-level people cared less about keeping counter-terrorist surveillance methods secret than they did about involving themselves in the Baltimore and Ferguson events, and on that point readers can guess what they prioritized more.

Is this an invasion of privacy? Police (and the FBI) do stakeouts all the time, and as long as the subjects tracked are in public, no warrant is necessary — as long as all they do is look and gather data on specific subjects’ behavior and movements in public.  The AP notes that the planes have the capability of doing more than that:


“The FBI’s aviation program is not secret,” spokesman Christopher Allen said in a statement. “Specific aircraft and their capabilities are protected for operational security purposes.” Allen added that the FBI’s planes “are not equipped, designed or used for bulk collection activities or mass surveillance.”

But the planes can capture video of unrelated criminal activity on the ground that could be handed over for prosecutions.

Some of the aircraft can also be equipped with technology that can identify thousands of people below through the cellphones they carry, even if they’re not making a call or in public. Officials said that practice, which mimics cell towers and gets phones to reveal basic subscriber information, is rare.

So it’s potentially not as benign for everyone else as the FBI suggests in its statement, although it may well be operationally benign if they aren’t utilizing those capabilities … at the moment. The problem with this statement is that we’ve heard it before. It’s exactly what James Clapper told Congress about the NSA two months before Edward Snowden revealed that it’s exactly what they were doing.

If the FBI needs to operate these flights to conduct specific investigations into counterterrorist threats, we should make sure that the data gleaned remains narrowly tailored to the investigations. After the false testimony from Obama officials on the NSA programs, Congress should get Justice officials — especially those who blew the program to inject themselves into the Baltimore and Ferguson riots — under oath to get specific testimony on the scope and operations of the FBI’s Fly By Night air corps.


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