Suspicions confirmed (well, at least by the FBI…): the FBI has been flying its surveillance planes over cities, often at the behest of local law enforcement.

FBI Surveillance flights over Baltimore and Ferguson as residents of those cities engaged in civil disobedience against racially-motivated police violence were lawful and useful, bureau Director James Comey claimed Thursday.

Comey said that the missions were flown at the behest of local law enforcement in each case, as demonstrations raged against the killings of Michael Brown and Freddie Gray by city cops.

In cases where large-scale protests are probable, it’s unsurprising that aerial surveillance will be in use. Comey pitches the FBI’s secret surveillance flights as a public benefit, which, in these cases, it arguably is.

“If there is tremendous turbulence in a community, it’s useful to everybody—civilians and law enforcement—to have a view of what’s going on,” Comey said. “Where are the fires in this community? Where are people gathering? Where do people need help?” he went on.

What’s more concerning are the FBI’s other flights — the ones it’s not as eager to talk about. These flights were uncovered by journalists and hobbyists, who tracked the planes’ bizarre flight patterns, as well as traced their ID numbers back to a plethora of shell companies the FBI created to hide the planes’ purpose and origin.

To be clear, aerial surveillance rarely implicates Fourth Amendment concerns. In order to do so, planes/helicopters/drones have to fly at very low altitudes and disturb normal ground activities. At this point, the airborne surveillance becomes legally analogous to a breaching of the curtilage — more or less a warrantless search.

Comey also answered questions from Senator John Conyers, who had concerns about observed FBI flights over his home state of Michigan. As Comey explained, the flights are simply standard operating procedure.

We use planes in our predicated investigations to conduct surveillance of people who are under investigation. We do not use planes for mass surveillance. And so the good folks in Michigan who saw a plane in the air, I think a lot of them had a chance to meet with my SAC (special agent in charge) out there, and have him explain: ‘Look, this is what we do in criminal cases. It should make sense, if you understand how we use it in individual cases.’ So we have a small number of airplanes — I actually wish we had more — that we use to follow people in places where it’s hard to follow them on foot or in a car.”

Even if lawful, the planes are still raising surveillance concerns. Targeted surveillance is one thing, but it’s common knowledge that US government agencies are using airborne cell tower simulators. Much like the ground version (commonly known as Stingrays), these devices scoop cell phone connection data (which includes location info). Many can be configured to obtain communications as well. The FBI denies using any of its planes for “mass surveillance,” but the agency possesses all of the necessary technology to deploy them in this fashion.


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