Chinese national arrest for drone surveillance

[Chip]

Defendant recently had a bail hearing. The court set the stage:



THE DEFENSE ARGUES NO BAIL SHOULD BE REQUIRED

The defense attorney argued: For the type of case that he's got, with the fact that he doesn't have a criminal history, he has a legal permanent residence, which means that someone has done a background check on him and has deemed him to be a person who is able to reside here in the United States, there's no allegation here that he was doing this on behalf of, like the Chinese government or anything else like that. He was essentially present at Vandenberg when Space X was doing a launch. And, so, this does not seem to be the type of case that would necessitate a concern that he would otherwise flee or not appear. (emphasis added)

THE US ATTORNEY ARGUES NO BAIL DUE TO FLIGHT RISK

The federal prosecutor argued: "in terms of connections to the community, we have no present job, no residence, no family members, no one willing to put up a bond here. there's abundant evidence here and there's also a degree of sophistication. This type of crime is very difficult to detect. It's only in the instance of a drone detection system at Vandenberg that we were able to uncover it. When the Defendant was first approached, he lied about who he thought the pilot of the drone was, and then he further lied about the (indiscernible) issue of the flight...(Zhou said he only flew for 15 minutes but FBI said it was 59 minutes)...All of this is just to say that he has a predisposition in not articulating accurate or truthful (sic) with law enforcement. He also -- there's evidence of premeditation, your Honor. As you saw from the complaint affidavit, he did search through -- about the legality in what he was intending to do, as early as November, and then he still went forward with his plan. All of that is to say that, given the difficulties of addressing and detecting this type of crime and the sophistication involved here, mainly his willingness to hack a drone, we believe that he presents a risk of danger that also cannot be adequately mitigated by a bail package (emphasis added).

Comment: The government is arguing that "willingness to hack a drone," is evidence of criminal sophistication and flight risk.

 

[Chip]

DELETE THIS

Another excerpt from the FBI report:

During the contact with ZHOU, ZHOU showed Security Forces personnel footage that ZHOU had taken using his drone. ZHOU showed the Security Forces personnel the footage on his cellphone. Upon seeing that the footage consisted of parts of VSFB, Security Forces personnel instructed ZHOU to delete footage of the base from the cellphone and watched ZHOU delete the footage.5 (footnote)

5 As discussed below, the FBI later obtained a federal warrant to search the drone, the drone controller, a cellphone belonging to ZHOU, a handheld camera belonging to ZHOU, and two cellphones belonging to Individual-1.

COMMENT: Military Security instructed ZHOU to delete drone footage from his cell phone BEFORE they turned phone over to the FBI to be searched and forensically examined under a warrant. This seems like an odd way to handle evidence. The encounter took place btw on land where this is concurrent jurisdiction between Military Security/FBI and the Santa Barbara Sheriff.

 

[mavic3usa]

^As usual the case is a mess and will end up offer ZHOU a deal he won't be able to refuse.

 

[Chip]

The federal judge ordered Zhou detained pending trial. Transcript has not ben released but prosecutor previously argued no bail should be granted due to community danger + sophisticated crime + flight risk.

 

[Chip]

DRONES FLOWN BVLOS REQUIRE REGISTRATION REGARDLESS OF WEIGHT

In his report, FBI Special Agent Wood explains that ZHOU'S Mavic 2 required registration due to its weight. He also explained for good measure, that the drone had to be registered regardless of weight because it was being flown BVLOS and at more than 400 feet.

31. ZHOU also does not meet the requirements for mere recreational use. Among other things, the DJI Drone was not flown within the visual line of sight of the drone pilot or a co-located observer, see 49 U.S.C. § 44809(a)(3), 14 C.F.R. § 107.31. Based on my review of the report of the DJI Drone’s flight and publicly available mapping records, I believe the DJI Drone flew approximately 1.8 miles from its origin in Ocean Park into VSFB. As set forth above, the drone flew to approximately .9 miles at its maximum height. Likewise, as set forth above, ZHOU told agents that he lost sight of the DJI Drone while it was flying. Accordingly, the DJI Drone likely went out of the visual line of sight of the drone pilot or a co-located observer.11 For this reason too, ZHOU was required to register the DJI Drone.12

Special Agent Wood's footnote 11 seems to indicate that the FBI may not yet have a cadre of expert witnesses able to prove BVLOS with certainty in cases involving modest distances (as opposed to 1.8 miles). Agent Wood references anecdotal accounts in "publicly available information," including on "one drone-related website." Of course he might also have just completed some basic research and thrown in a footnote knowing that ZHOU was dead to rights on the three year felony for failure to register the drone due to its weight anyway.

"11 Publicly available information gives different estimates for what distance would put a drone beyond the visual line of sight, but at least one drone-related website notes that “[d]epending on the terrain, time of day, and use of anticollision lights, you’ll be hard-pressed to see your drone when it’s one mile away.” Is there a specific distance implied when the FAA says ‘visual line-of-sight’?, UAV Coach, https://www.dronepilotgroundschool....plied-when-the-faa-says-visual-line-of-sight/

He also cited VLOS: How Drone Pilots Determine Maximum Flight Distances (“Some pilots say they can see their drone in the sky no farther than 300 feet away. Some other pilots claim to be able to spot their drone at aerial distances of over one mile away.”)."

"12 Another requirement for the recreation exception is that the drone pilot obtain prior authorization from the

 

[mavic3usa]

DRONES FLOWN BVLOS REQUIRE REGISTRATION REGARDLESS OF WEIGHT

<snip>

This is important because it means at least 2 things:

1. I've said this before and I'll say it again even though it could be controversial but it's my opinion: For the most part, everyone needs a part 107 license to fly a drone in the NAS except if you fly for fun only. When you fly for fun, you are a recreational flyer and you qualify for the exception and you follow the rules for the hobby pilot. At any point you violate those rules you lose your ability to fly recreationally and all part 107 rules apply to you and your flight. If you are flying your unregistered mini 3 and you are having fun and you fly at 425 feet AGL, that flight is illegal for many reasons among those are flying about 400 feet AGL, you are flying without a part 107 license, and you are flying an unregistered drone with no RID. Only when you fly for fun and you obey the rules are you allowed to fly a mini without registration and without a license.

2. The authorities can and will make a case against you on the so-called minor issues and they definitely observe and read what they see on the forums and elsewhere on the internet. Flying BVLOS is a minor infraction when it occurs from time to time but becomes a big deal when it is used against you because there are no minor drone rule infractions. Unlike traffic violations, every drone infraction carries significant weight when adjudicated especially when taken together in the totality of the circumstances. The authorities don't have to be present at the time of the infraction to make a determination on whether your flight was illegal or not. If you are thought to be illegal, it won't be because of a simple, single violation.

Unfortunately this is how it is setup (against us) which is not the worst thing in the world when it comes to dealing with federal law enforcement especially if you are careful and safe and do your best to obey the rules and the regulations. However, this setup is a non-starter once you are subject to state and local laws. It won't work.

 

[MS Coast]

2. The authorities can and will make a case against you on the so-called minor issues

And yet, we never read or hear about anyone being arrested, much less prosecuted, for only a minor violation.

Yes, few people have been charged with minor violations committed in conjunction with serious crimes, but not solely for minor violations.

 

[Chip]

This is important because it means at least 2 things:

1. I've said this before and I'll say it again even though it could be controversial but it's my opinion: For the most part, everyone needs a part 107 license to fly a drone in the NAS except if you fly for fun only. When you fly for fun, you are a recreational flyer and you qualify for the exception and you follow the rules for the hobby pilot. At any point you violate those rules you lose your ability to fly recreationally and all part 107 rules apply to you and your flight. If you are flying your unregistered mini 3 and you are having fun and you fly at 425 feet AGL, that flight is illegal for many reasons among those are flying about 400 feet AGL, you are flying without a part 107 license, and you are flying an unregistered drone with no RID. Only when you fly for fun and you obey the rules are you allowed to fly a mini without registration and without a license.

Yes, I agree. And again, if you fly the Mini 3 or other 249 gram drone BVOLS, then it has to be registered. The failure to register has 3X the penalty of flying in national defense airspace.

2. The authorities can and will make a case against you on the so-called minor issues

I would say it depends on how we define minor. But for sure it behooves everyone to be very cognizant of where and how they are flying. Of course, its always been that way but now more than ever.

and they definitely observe and read what they see on the forums and elsewhere on the internet.

Yes, I thought it was interesting the FBI agent cited anecdotal internet sources. I have to wonder though if ultimately a regulation will be drafted which creates a rebuttable presumption that a flight beyond a prescribed distance is BVLOS.

Flying BVLOS is a minor infraction when it occurs from time to time but becomes a big deal when it is used against you because there are no minor drone rule infractions. Unlike traffic violations, every drone infraction carries significant weight when adjudicated especially when taken together in the totality of the circumstances. The authorities don't have to be present at the time of the infraction to make a determination on whether your flight was illegal or not. If you are thought to be illegal, it won't be because of a simple, single violation.

I share your concerns. But I think experiences may vary depending on the person, the location and the circumstance.

Unfortunately this is how it is setup (against us) which is not the worst thing in the world when it comes to dealing with federal law enforcement especially if you are careful and safe and do your best to obey the rules and the regulations. However, this setup is a non-starter once you are subject to state and local laws. It won't work.

I think the feds want state and local law enforcement to step up their game with new legal authority and equipment to investigate and prosecute drone violators.

 

[Chip]

We actually do have a few cases to compare how different drone pilots have been treated in the federal court system. This one involved flight over NFL stadium in Maryland. We have discussed it before but now we know the details of the guy's plea agreement and the terms of his probation.

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[Chip]

From the FBI Special Agent's Probable Cause Affidavit:



Drone operator Matthew Hebert, age 44, admitted to flying a Mavic Mini 2 but told law enforcement that he assumed there were no flight restrictions because a drone app he relied on didn’t indicate otherwise. His drone was not registered, and he didn’t have a license to operate it. Hebert flew the drone for about two minutes, capturing images of himself and the stadium. Hebert told officers he was aware a football game was in progress and they noted he was wearing a Baltimore Ravens game jersey and had been attending a Ravens fan party approximately one mile from the stadium.

 

[Starz]

if it was actually DJI that altered

Far fetched. Drone hacks are readily available to anyone with a laptop.

 

[MS Coast]

And again, if you fly the Mini 3 or other 249 gram drone BVOLS, then it has to be registered.

Where do the FAA regulations state that?

Some might read that statement as suggesting that flying BVLOS is legal with a registered drone - not so.

 

[Chip]

Drone hacks are readily available to anyone with a laptop.

I think you are right. But certain "hacks," like removing geofencing and then flying in a restricted area, may be viewed as evidence of pre-meditation or criminal intent. That is one of the things the US Attorney argued to prevent ZHOU'S release on bail.

 

[Chip]

Where do the FAA regulations state that?

I will cite and excerpt below for you.

Some might read that statement as suggesting that flying BVLOS is legal with a registered drone - not so.

Yes, my apology, I think my wording could have been a little better for exactly this reason.

 

[Chip]

 

[Chip]

 

[Chip]

BTW these excerpts are from the "probable cause affidavit" filed in federal court in Maryland by FBI Special Agent, David A Rodski. He summarized his relevant experience as follows:

 

[MS Coast]

And again, if you fly the Mini 3 or other 249 gram drone BVOLS, then it has to be registered.

BTW these excerpts are from the "probable cause affidavit" filed in federal court in Maryland by FBI Special Agent, David A Rodski.

That material from the court case doesn't define FAA regulations. What FAA regulation says anything about BVLOS flight and registration?

 

[Chip]

That material from the court case doesn't define FAA regulations. What FAA regulation says anything about BVLOS flight and registration?

Special Agent David A Rodski explains it well in his probable cause affidavit. I will excerpt that for you rather than try to summarize in my words.

 

[Chip]