Congress Didn't Notice the FBI Creating a 'Small Air Force' for Surveillance

Excessive executive branch secrecy and the legislature’s oversight failures

A small plane flies near Manassas Regional Airport in Virginia. The plane is part the FBI's fleet of surveillance aircraft, which are primarily used to target suspects under federal investigation. Such planes are capable of taking video of the ground, and, in rare occasions, can sweep up certain identifying cellphone data. (Andrew Harnik / AP)

Last week, Americans learned that even as the NSA collected information on their telephone and Internet behavior, the FBI was using fictitious companies to secretly operate what the AP called “a small air force with scores of low-flying planes across the country carrying video and, at times, cell phone surveillance technology.”

The news organization reported that surveillance flights may be more than a decade old, and identified “more than 100 flights since late April orbiting both major cities and rural areas.”

The merits of this program will now be debated.

What’s already clear, however, is the anti-democratic nature of keeping it hidden all these years. The U.S. is supposed to be governed by the people. Whether Americans want a federal law-enforcement agency using planes to conduct surveillance on vast swaths of the country is a question properly aired and debated.

It is for Americans to choose.

Instead, an executive branch that has grown alarmingly powerful since the September 11 terrorist attacks, or perhaps even before, imposed its preferred policy in secret. The vast majority of Americans were completely unaware of its choice.

This made voter accountability on the issue impossible.

And many of the FBI’s ostensible overseers in Congress don’t know much more than the public, either. This is evident from letters that legislators have written in recent days. Senator Charles Grassley, chairman of the Judiciary Committee, demanded to be briefed no later than this week on “the scope, nature, and purpose of these operations… and what legal authorities, if any, are being relied upon in carrying out these operations.”

Sixteen House members wrote to the FBI, pointing out that the president had just signed a reform ending the bulk collection of phone records. “It is highly disturbing,” they wrote, “to learn that your agency may be doing just that and more with a secret fleet of aircraft engaged in surveillance missions.” They asked for the FBI to identify the legal theory used to justify the flights, the circumstances surrounding them, the technologies on the aircraft, the privacy policy used for data collected, and the civil liberties safeguards that had been put in place.

Senator Al Franken has posed ten questions of his own to the FBI:

  1. What technologies are used by the FBI during the course of aerial surveillance? To what extent does the FBI use IMSI-catchers, “DRTBoxes,” “dirtboxes,” or “Stingrays”? To what extent does the FBI use infrared cameras? To what extent does the FBI use video cameras?​​
  2. How frequently does the FBI engage in aerial surveillance that utilizes IMSI-catchers, infrared cameras, or video technology? In what types of operations does the FBI deploy aerial surveillance utilizing these technologies? More generally, under what circumstances is aerial surveillance using these technologies deployed?
  3. Under what legal authority is the FBI acting when conducting aerial surveillance, including aerial surveillance that utilizes IMSI-catchers, infrared cameras, or video technology? To the extent that the Department of Justice is seeking court approval before deploying any of these technologies during aerial surveillance, is this done on a case-by-case basis or does the Department seek broader authorization? What are judges told about how the technologies deployed work, and the potential impact on innocent Americans? Please provide a representative sample of the applications for these court orders.
  4. To the extent that the Department of Justice has developed policies governing the use of IMSI-catchers, infrared cameras, or video technology during aerial surveillance, please identify the policies and legal processes used. Are different technologies subject to different policies or forms of legal process? If so, please describe the application of these policies.
  5. Has the Department of Justice developed policies on the retention of data collected in the course of aerial surveillance that utilizes IMSI-catchers, infrared cameras, or video technology? Has the Department developed policies on the destruction of that data? If so, please describe these policies.
  6. How many individuals can be detected, tracked, and/or monitored during each surveillance flight? If IMSI-catchers are being used, how many phones can be detected, tracked, and/or monitored during each flight?
  7. Reports indicate that some of the surveillance systems have the capability of blocking phone calls, including 911 and other emergency calls. What steps have been taken to ensure that hone calls of non-targeted civilians are not interrupted by the FBI’s aerial surveillance?
  8. To the extent that aerial surveillance has been deployed above large public gatherings, what steps is the government taking to ensure that such surveillance does not chill constitutionally protected conduct, such as political and religious activity?
  9. Has the Department of Justice’s Office of Privacy and Civil Liberties conducted a privacy impact assessment or otherwise reviewed the use of technologies utilized during aerial surveillance? Has a review or privacy impact assessment been conducted on the FBI’s use of aerial surveillance more broadly? If so, please provide copies of such assessments or reviews.
  10. What safeguards are in place to ensure innocent Americans’ privacy is protected during aerial surveillance utilizing technology that collects data and personal information?

Shame on the FBI for not informing the public and the full Congress about this program. And shame on legislators for being so clueless about surveillance flights run for years by a law-enforcement agency which they are responsible for overseeing. The fact that questions about legal authorities and privacy are just now being raised is yet another indication that legislators have been derelict in their duties.