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The United States Department of Justice is quietly prosecuting a novel Espionage Act case involving a drone, a Chinese national, and classified nuclear submarines.
The case is such a rarity that it appears to be the first known prosecution under a World War II–era law that bans photographing vital military installations using aircraft, showing how new technologies are leading to fresh national security and First Amendment issues.
“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’s 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. His research focused on using AI to detect signs of crop disease in photos. Shi’s subject that week wasn’t plants, however, but allegedly the local shipyards—the only ones manufacturing the latest generation of Navy carrier ships in the country, and nuclear submarines as well.
According to an affidavit filed by FBI special agent Sara Shalowitz in February, a shipyard security officer alerted the Naval Criminal Investigative Service to Shi’s actions. The affidavit alleges that on January 6, Shi was flying a drone in “inclement weather” before it got stuck in a neighbor’s tree. When Shi, who is a Chinese citizen, approached the neighbor for help, he was questioned about his nationality and purpose for being in the area. The unnamed 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 “did not have any real reasons” for flying a drone in bad weather. The police gave Shi the number for the fire department and said he would need to stay on the scene. Instead, he returned the rental car an hour later and left Hampton Roads, Virginia, abandoning the drone.
When the FBI seized the drone and pulled the photos off 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 photos, the Newport News Shipyard was “actively manufacturing” aircraft carriers and Virginia class nuclear submarines.
“Naval aircraft carriers have classified and sensitive systems throughout the 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 DOJ is charging Shi with six Espionage Act misdemeanors under two statutes: one banning photographing a vital military installation and one banning the use of an aircraft to do so. Each misdemeanor can result in up to a year in prison upon conviction. While he awaits trial, Shi is restricted to living in Virginia under probation. He was forced to surrender his passport. According to court filings, he appears to require a translator.
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Shi’s case, filed in federal court in Virginia’s Eastern District, was first spotted by Court Watch in February. Its rarity became apparent in March, after prosecutors filed a motion for a time extension. The judge agreed, writing that it was justified because the case is “so unusual due to the nature of the prosecution and the novel questions of both law and fact.”
Indeed, Shi is being charged “under two statutes which have been rarely prosecuted” to the degree that “the Court has been able to only find one reported case,” the judge wrote. That case, Genovese v. Town of Southampton, centered on just one of the two statutes Shi is being charged under—photographing a military installation, without an aircraft.
The DOJ declined to comment when WIRED posed questions about Shi’s case, including whether the Chinese government is being engaged on the issue.
According to a filing from US prosecutors, both parties wish to end the case in a plea agreement. Shi’s attorney did not respond to multiple requests for comment.
WIRED found multiple social media accounts connected to Shi. He appears to have a small online footprint and few interactions with others online, portraying a life of quiet normalcy. He appears to be a soccer fan who enjoys campus and is a devoted League of Legends player. He even attended the competitive online game’s 2022 World Championship tournament in San Francisco. In fact, according to online records, he often plays League of Legends multiple times a day while awaiting trial in Virginia. His university research is similarly innocuous: He’s developing an app for detecting crop diseases in photos called Gopher Eye, which is being funded by the National Science Foundation, and has applied for a patent. He describes himself as a “startup manager” on LinkedIn.
One of Shi’s colleagues at the University of Minnesota, who spoke to WIRED under the condition of anonymity, says that he was a “typical” kid who was “very passionate” about his research. In the fall of 2023, however, financial and familial strife compounded by mounting pressure from lagging grades led to a break. The colleague said that Shi soon all but disappeared, taking leave from his studies and “basically hiding from all of his normal relationships.” He’s been difficult to contact since then, they say, adding that they did not know that Shi is currently in the US—much less embroiled in a rare national security case.
“From my point of view, he’s had very bad luck,” they say. “I don’t think that he did anything wrong intentionally.”
The question of why the DOJ is prosecuting Shi in the first place looms large over his case. After all, satellites originating in China photograph the US daily, including military sites and aircraft carriers. The degree to which Shi’s nationality played a role in the DOJ’s decision to prosecute the case isn’t clear. The case is proceeding amid rising animosity between China and the US, but Shi isn’t being charged under any laws related to collecting intelligence for a foreign government. He is not being accused of acting as a spy. His only alleged crime is taking photos with a drone.
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“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 says. “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.”
Cases prosecuted under statutes banning photographing military bases can have implications for First Amendment rights, Berman says. Photographing in a public place is a constitutionally protected activity.
“It would be a good thing to litigate some of these cases and clarify what the rules actually are about what you can and can't do,” she says. “Any time there is uncertainty, that may make people hesitant to do things that they are constitutionally entitled to do.”
The few occasions where statutes banning photographing military installations have come up illustrate this concern. In Genovese v. Town of Southampton, Nancy Genovese sued law enforcement officials who arrested her for photographing an airport—part of which was a military base—while having guns in her car. A jury agreed that law enforcement was maliciously prosecuting Genovese, and she landed a settlement amounting to more than $1 million in 2016. In another incident, in 2014, reporters for The Blade in Ohio filed a federal lawsuit after they were unlawfully detained for taking photos outside a military base. In that case, too, the law favored the plaintiffs, and the reporters were awarded $18,000.
Shi’s case is scheduled to start on June 20.
