Matthew T. Mangino
June 5, 2015
The FBI is watching. No, it’s not the Hooveresque G-men following a high-profile target and building an incriminating, or at least embarrassing, dossier.
The FBI is watching you. According to an investigation by The Associated Press, during a recent 30-day period, the FBI conducted aerial surveillance over more than 30 cities in 11 states.
The FBI is admittedly operating a small air force. A fleet of low-flying planes carrying video surveillance technology — and using shell companies and clandestine tactics to hide the FBI’s involvement — are in operation across the U.S., reported CBS News.
“The FBI’s aviation program is not secret,” FBI 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.”
Yet the FBI uses planes registered under fictitious companies in order to conduct warrantless surveillance during federal, state and local investigations. The surveillance is conducted without a court order, but with oversight from within the Department of Justice, according to a senior law enforcement official, reported CNN.
U.S. law enforcement officials confirmed the wide-scale use of aircraft, which The Associated Press traced to at least 13 fake companies, such as FVX Research, KQM Aviation, NBR Aviation and PXW Services.
The FBI said it uses front companies to protect the safety of the pilots and aircraft. It also shields the identity of the aircraft so that suspects on the ground don’t know they’re being watched by the FBI.
Does the FBI have the right to watch American citizens from the sky?
The Fourth Amendment, which provides the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” has protected American’s privacy interests for more than two centuries.
In 1986, the U.S. Supreme Court held that the “Fourth Amendment simply does not require the police traveling in the public airways ... to obtain a warrant in order to observe what is visible to the naked eye.”
The FBI planes are equipped with technology that can capture video of unrelated criminal activity on the ground that could be handed over to prosecutions.
Some of the aircraft are 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 used in only limited situations, reported CBS News.
The planes’ surveillance equipment is generally used without a judge’s approval, and the FBI said the flights are used for specific, ongoing investigations.
There are a number of potential abuses that concern privacy experts. One is voyeurism. An NYPD helicopter pilot, who filmed a couple on their rooftop balcony defended the four minute video-tape — “this is what police helicopters are supposed to do, check out people to make sure no one is doing anything illegal,” reported the ACLU.
There is also concern over discriminatory targeting, focused on certain racial minorities: institutional abuse focusing surveillance on certain groups like political protesters; and automated enforcement which may be subject to technological limitations and the lack of a human factor on the ground.
The FBI contends that the surveillance flights comply with agency rules. Those rules limit the types of equipment the agency can use, as well as the justifications and duration of the surveillance, reported CNN.
However, the scope of the surveillance and the fact that there is no judicial review makes the surreptitious use of a nationwide fleet of airplanes a bit unnerving.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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