The United States Department of Justice is quietly prosecuting a unique Espionage Act case involving a drone, a Chinese national, and classified nuclear submarines.
The case is such a singularity that it seems to be the first reported prosecution under a World War II-era law that forbids photographing vital military establishments employing an aircraft, illustrating how modern technologies are engendering fresh national security and First Amendment issues.
“This is undoubtedly not anything that the law has approached to any noticeable degree,” Emily Berman, a law professor at the University of Houston who concentrates on national security, reveals to WIRED. “There’s definitely no recorded cases.”
On January 5, 2024, Fengyun Shi traveled to Virginia while taking a break from his graduate studies at the University of Minnesota, and hired a Tesla once he landed at the airport. His field of study was primarily focused on employing AI technology to detect signs of disease in crops from photos. During that period, Shi, allegedly, turned his attention to something other than plants – the local shipyards, the only ones in the country manufacturing the newest model of Navy carrier ships, along with nuclear submarines.
The Naval Criminal Investigative Service was alerted about Shi’s suspicious activity by a shipyard security officer, as documented in an affidavit filed by the FBI special agent Sara Shalowitz in February. The affidavit details how, on January 6, Shi was caught operating a drone under “inclement weather” conditions, which later got stuck in a neighbor’s tree. Upon being approached by Shi, a Chinese national, the neighbor interrogated him about his nationality and purpose of visit, took photos of Shi, his ID, and the license plate, and reported to the police. As per the affidavit, Shi seemed extremely nervous on being questioned by the police and couldn’t provide a credible reason for flying the drone under bad weather conditions. The police informed Shi to stay at the venue and handed over the fire department’s contact info. Instead, Shi returned the rented car within the next hour and left Hampton Roads, Virginia, leaving the drone behind.
The FBI later confiscated the drone and transferred the photos stored in its memory card. Special agent Shalowitz recognized the photos as being clicked at Newport News Shipyard and BAE Systems, both located 45 minutes away. As per the affidavit, the Newport News Shipyard was actively constructing aircraft carriers and Virginia class nuclear submarines on the day Shi took the photos.
The affidavit further explained that, “Naval aircraft carriers are equipped with numerous classified and sensitive systems. The nuclear submarines that were present on that date also comprised highly classified and sensitive Navy Nuclear Propulsion Information (‘NNPI’) and those submarines, even during their design and construction phase, are classified and sensitive.”
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.
