The United States Justice Department has charged a Chinese national under the Espionage Act for taking photos of a military installation using a drone.
In an excellent article, WIRED details the ongoing legal case of Fengyun Shi, which puts yet another wrinkle in the complicated relationship between the United States federal government and Chinese authorities.
While on leave from his graduate studies at the University of Minnesota, Shi flew to Virginia on January 5, 2024. While in Virginia, he rented a car and drove to a shipyard where United States military personnel build nuclear submarines.
An affidavit filed later in January by FBI special agent Sara Shalowitz claims that a shipyard security officer saw Shi and told the Naval Criminal Investigative Service. Shalowitz alleges that on January 6, Shi was flying his drone in poor conditions, and it got stuck in a tree on a neighboring property.
Shi approached the property owner, requesting help retrieving his drone. At that point, the student was questioned about his nationality and reason for being there. Legal filings suggest that Shi requires a translator. The unnamed individual captured images of Shi, his rental car’s license plate, and Shi’s identification. They then called the police.
When law enforcement arrived on the scene, Shi was understandably “very nervous,” and failed to provide a reasonable explanation for why he was there and flying a drone. The police explained to Shi that the fire department would need to retrieve the drone and that Shi should stay there until they arrived.
Instead, Shi left the area entirely, abandoning his drone in the process.
The FBI later seized the drone and discovered images of the Newport News Shipyard and BAE Systems, a defense, aerospace, and security company located about 45 minutes away from the shipyard. Per Shalowitz’s affidavit, when Shi was taking photos using his drone, the shipyard was “actively manufacturing aircraft carriers and Virginia class nuclear submarines.”
Based on the available evidence, including the photos Shi captured, the Department of Justice is charging the Chinese citizen under the controversial Espionage Act, which has faced consistent scrutiny since its establishment more than a century ago.
Shi has been charged with six Espionage Act misdemeanors, with each offense carrying a potential year-long stint in federal prison. Pending trial, Shi is required to live in Virginia under probation and has been forced to relinquish his passport to authorities.
The DOJ charged Shi under two statutes so rarely used in legal proceedings that the presiding judge found only one reported case in precedent. One of the statutes bans photography of military installations using aircraft.
“This is definitely not something that the law has addressed to any significant degree,” says Emily Berman, a law professor at the University of Houston who specializes in national security. “There’s definitely no reported cases.”
“From my point of view, he’s had very bad luck,” one of Shi’s colleagues from the University of Minnesota told WIRED anonymous. “I don’t think that he did anything wrong intentionally.”
Berman believes that Shi’s nationality is a key reason the DOJ has opted to pursue the case.
“The Justice Department has guidelines that say [nationality] is not supposed to play a role in a criminal investigation, but there are exceptions to that rule for national security and border-related investigations,” Berman explains. “It certainly seems likely that the fact Shi is a Chinese national raises red flags for investigators that wouldn’t necessarily go up in the same way if he was an American citizen, rightly or wrongly.”
The case has significant and challenging ramifications for everyone in the U.S., given that photographing at a public location is constitutionally protected. And yes, while Shi is not an American citizen, he does have constitutional rights within the U.S.
Although Shi is facing six misdemeanors rather than felonies, the case is important as it may limit — or reiterate — a person’s right to photograph on public land. Shi’s case is expected to begin on June 20. Neither the DOJ nor Shi’s legal representation responded to WIRED‘s request for comment.
Image credits: Header photo created using assets licensed via Depositphotos.
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