Investigations Raise Constitutional, Legal Concerns Over Aerial Surveillance

Investigations Raise Constitutional, Legal Concerns Over Aerial Surveillance

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North Star Post has learned that the Federal Bureau of Investigation (FBI) relies on forty year old Supreme Court rulings to justify warrantless aerial surveillance and does not seek warrants when fielding intrusive electronic surveillance gear. Documents obtained by NSP through Freedom of Information requests show that the FBI does not consider their actions in these regards to constitute a search.

The ACLU revealed a great deal of information on purchase orders of intrusive electronic surveillance technology from several federal agencies including the DEA and the FBI of which we have reported on a great deal. Preceding that, the Electronic Frontier Foundation validated much of the reporting NSP has done in regards to aerial surveillance.

Included in those disclosures are purchase orders for Stingrays for FBI aircraft and Hailstorms for the DEA. This shows the DEA may have lied to NSP when asked about technology on-board their aircraft in September of last year. “DEA’s response letter to us makes clear that they knew we were seeking information about cell site simulators deployed on aircraft” the ACLU reported following an inquiry specifically targeting documents on Administration aerial operations.

The legal justifications employed by the FBI to fly highly capable spy-planes over domestic targets, often times with electronic surveillance gear attached, are based on outdated legal grounds.

Florida v. Riley is the landmark Supreme Court decision that enables law enforcement to justify warrantless aerial surveillance that is visual in nature. This decision (which some question the validity of whatsoever) was based on 1980s technology and fails to consider advancements in imaging or electronic surveillance.  Mr. Riley’s property was observed by a law enforcement officer flying 400 feet above his property relying on just the naked-eye to make observations. Reexamination of these issues by the judiciary and Congress is long overdue.

Furthermore, one of the arguments made by the Supreme Court Justices was that since aircraft often overfly certain areas, one residing in those areas can not have a reasonable expectation of privacy from visual government searches from above. Since the 1980s air traffic has increased in frequency a great deal. The Atlantic said it best, “precedents like the one set in 1989 pose a novel threat to privacy rights.”

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Is it still fair to assume that those living underneath commonly air trafficked areas do not have a reasonable expectation of privacy from the prying eyes of an airborne big brother?

Cynthia Horvath, tackling the issue in an academic paper for Valparaiso, references arguments made against this decision in defense of the seemingly obvious Fourth Amendment case writing: “[There was] little else he could have done to secure his property, save constructing an ‘opaque bubble’ over his land.” The subject of the case in question had posted ‘no trespassing’ signs around the perimeter of his property in full view from all surrounding vantage points.

Private corporations like ‘Persistent Surveillance Systems,’ which provides wide area aerial surveillance to clients around the nation, use these rules to justify their operations as well.

Furthermore, the FBI justifies their refusal to seek warrants when fielding intrusive electronic surveillance gear by claiming that physical searches requiring a warrant do not include electronic surveillance as defined in FISA and Title III. Immediately prior to this the FBI says “a physical search constitutes any physical intrusion… including examination of the interior of property by technical means.”

With the known capabilities of these spy-planes armed with infrared imaging (which is capable of seeing through walls), Stingray (which are so invasive that they are able to turn cellphones into active microphones), the FBI’s arguments appear plainly self-defeating.

Compounding this is the fact that FBI Director Comey told Congress that he “doesn’t believe” the FBI needs to get warrants to use cellphone surveillance technology. This is despite the fact that around a month prior to this the Department of Justice which oversees the FBI issued new rules governing the use of such gear. The rules included provisions aimed at requiring law enforcement agencies to get warrants for such use.

The FBI’s justification itself shows that protected areas include residences, personal property (such as a cellphone or laptop), and private conversations. If a Stingray on-board an aircraft is able to turn a cellphone into an active microphone and record surrounding private conversations inside a residence, no reasonable person would conclude that those individuals did not have an expectation of privacy.

Nate Wessler of the ACLU said that it appears the government “is trying to have their cake and eat it too.” Wessler, who was behind the prominent disclosures which further confirmed the suspected power of these aircraft went on to say “they don’t think they’re required by the constitution to get warrants for these activities.”

Infrared (and aerial surveillance in general) can be extremely intrusive.

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Wessler, who has been at the forefront of these important and under-reported issues explained “[The FBI guidelines] do not answer questions posed by the use of new and more sensitive technologies.”

Here is Wessler’s full statement on the issue to NSP:

In its Domestic Investigations and Operations Guide, the FBI takes the position that no Fourth Amendment protections apply to “aerial surveillance conducted from navigable airspace.” While that is an accurate statement of Supreme Court precedent when it comes to visual observation and use of normal cameras from a plane, it fails to grapple with the effect of advances in surveillance technology. Use of infrared and night-vision camera technology changes the equation by raising the potential for invasions of privacy. The capabilities of the surveillance gear matter. If the infrared camera is capable of observing information about the inside of private homes and offices, for example, the Supreme Court has already explained that the Fourth Amendment’s warrant requirement applies.