The US Department of Justice is quietly prosecuting a novel Espionage Act case involving a drone, a Chinese national and classified nuclear submarines.
The case is so rare that it appears to be the first known prosecution under a World War II-era law that prohibits photographing vital military installations using aircraft, showing how new technologies are creating new national security and First Amendment problems.
“This is definitely not something that the law has addressed to any significant degree.” Emily Berman, a law professor at the University of Houston who specializes in national security tells WIRED. “There are definitely no reported cases.”
On January 5, 2024, Fengyun Shi flew to Virginia while on leave from his graduate studies at the University of Minnesota and rented a Tesla at the airport. Her research focused on using AI to detect signs of crop diseases in photographs. However, Shi’s topic that week was not the plants, but supposedly the local shipyards, the only ones manufacturing the latest generation of Navy aircraft carriers in the country, as well as nuclear submarines.
According to an affidavit filed by FBI Special Agent Sara Shalowitz in February, a shipyard security officer alerted the Naval Criminal Investigative Service about Shi’s actions. The affidavit alleges that on Jan. 6, Shi was flying a drone in “inclement weather” before he became stuck in a neighbor’s tree. When Shi, who is a Chinese national, approached the neighbor for help, she was asked about his nationality and purpose for being in the area. The anonymous resident took photos of Shi, his license plate and his ID, and called the police. The affidavit alleges that Shi was “very nervous” when questioned by police and had “no real reason” to fly a drone in bad weather. The police gave Shi the fire department’s number and told him he would have to remain at the scene. Instead, he returned the rental car an hour later and left Hampton Roads, Virginia, abandoning the drone.
When the FBI confiscated the drone and removed the photos from its memory card, they discovered images that Special Agent Shalowitz said she recognized as being taken at Newport News Shipyard and BAE Systems, which is a 45-minute drive away. The affidavit states that on the day Shi took the photographs, the Newport News Shipyard was “actively manufacturing” Virginia-class aircraft carriers and nuclear submarines.
“Naval aircraft carriers have classified and sensitive systems on all of their aircraft carriers,” the affidavit states. “The nuclear submarines present on that date also have highly classified and sensitive Navy Nuclear Propulsion Information (‘NNPI’) and those submarines, even in the design and construction phase, are sensitive and classified.”
The Justice Department is charging Shi with six Espionage Act misdemeanors under two statutes: one that prohibits photographing a vital military installation and another that prohibits the use of an airplane to do so. Each misdemeanor can result in up to one year in prison upon conviction. While awaiting trial, Shi is restricted to living in Virginia on probation. He was forced to hand over his passport. According to court documents, it sounds like he needs a translator.