Letter to Mark Morgan, Acting Commissioner of U.S. Customs and Border Protection - Rush, Eshoo Lead House Colleagues in Demanding FBI, CBP Answer Questions About Surveillance of Protests

Letter

Dear Acting Commissioner Morgan,

Thank you for your response of July 2, 2020 to our letter of June 9, 2020, about the
troubling government surveillance of protesters and the chilling effect it has on peaceful
protests. While we appreciate your response, your letter raises several questions which
are listed in this letter.

As we stated in our letter, the First and Fourth Amendments protect protesters from
government surveillance. The reason our Constitution has such critical protections is that
government surveillance has a chilling effect on peaceful protests, and Americans should
not have to take proactive measures to protect themselves from government surveillance
before engaging in peaceful demonstration.

In order to understand the scope of potential surveillance of protesters by CBP, we
respectfully request that you respond to the below questions by July 31, 2020:

(1) In your letter, you state a CBP unmanned aircraft system (UAS) flew over
Minneapolis, Minnesota on May 29th at the request of federal law enforcement but
"was unable to observe activities on the ground due to cloud cover." Press reports
based on public flight records indicate this UAS to be CBP-104.

(a) Which federal law enforcement agency requested this aerial support from
CBP? What exactly did the federal agency request? Please share any
documentation of such request(s).

(b) Which law enforcement agency or agencies (whether federal, state, local,
tribal, or international) received information or intelligence derived in
whole or in part by the UAS?

(c) Altitude has a major impact on the capability of any onboard camera(s).
Press reports indicate that CBP-104 flew at an altitude of 20,000 feet over
Minneapolis. Is this accurate? If not, at what altitude did CBP-104 fly?

(d) What surveillance equipment did CBP-104 have on board while it flew
over Minneapolis? Please identify whether or not CBP-104 has each of the
following types of equipment and whether each was operating during the
May 29th flight:

(i) fixed or mobile video surveillance systems.

(ii) rangefinders.

(iii) thermal imaging devices.

(iv) radar.

(v) ground sensors.

(vi) dirtboxes, stingrays, other cell site mimicking equipment, other
radio frequency sensors, or other telecommunications interception
equipment.

(vii) wide-area surveillance system.

(e) Did the UAS use any information collection technologies other than those
identified in the Privacy Impact Assessment (PIA)?

(f) What is the maximum resolution of the camera system(s) attached to CBP104?

(i) How many pixels does the imaging sensor possess?

(ii) Can any camera system discern specific vehicles or individuals,
even if it is not able to identify them on its own?

(g) Did any surveillance equipment on board CBP-104 have associated
software for facial recognition, other biometric identification, or
automated license plate reading? Was such software used during or after
the flight?

(h) What information was provided to the requesting agency or any other
agencies that received footage or any other data from CBP-104?

(i) If any video footage was provided, what was the duration of the
footage and what was the file size of total video files transferred?

(ii) What other data or files were transferred to the requesting agency?
What was the total file size of the transfer?

(iii) Did CBP edit or alter the video footage or other data in any way
before transferring such footage or data to the requesting agency?

(2) You state that CBP UAs were not flown over Detroit, Michigan or San Antonio,
Texas during protests.

(a) The New York Times reported on June 2nd that "At the request of the
Justice Department…[AMO], which uses aircrafts and drones, was
directed to provide surveillance of the protests, including demonstrations
in Detroit." Is this reporting inaccurate? If not, which part of the article is
inaccurate?

(b) Vice Motherboard reported on June 3rd that "CPB-108 recently flew
around half a dozen times above or near San Antonio, Texas". Is this
reporting inaccurate? If not, which part of the article is inaccurate?

(3) Please provide a list of all requests for aerial support from federal, state, local,
tribal, or international law enforcement agencies that involved any manned or
unmanned aerial surveillance over, near, or of cities experiencing protests in the
U.S. starting on May 25th.

(a) Please provide the documentation related to these requests.

(b) Please include whether CBP complied with these requests.

(c) For requests that CBP fulfilled, please provide the amount of time CBP
aircraft was flown, the amount of footage collected, agencies to which
data collected by CBP aircraft was provided, and descriptions of any
altering and processing of the data by CBP or about which CBP has
knowledge.

(4) Please provide a list of any CBP manned and unmanned aerial flights not included
in the response to question (2) that CBP knows to have collected any video footage or other data related to protests, whether or not requested by a federal,
state, local, tribal, or international law enforcement.

(5) In your letter, you state that "the onboard camera cannot provide enough detail for
an operator to identify a person." Over seven years ago, the military developed
cameras powerful enough to identify a six-inch target (i.e., a human face) from
20,000 feet away, which is the reported altitude of CBP-104's flight over
Minneapolis. Further, "CBP formed a partnership with the Department of
Defense (DoD) to identify and reuse excess DoD technology," according to CBP
documents.

(a) Does the CBP currently own or operate cameras that can identify
individuals from an altitude of 20,000 feet?

(b) Has CBP developed, leased, purchased, procured, or otherwise used such
cameras or is CBP currently developing, leasing, purchasing, procuring, or
otherwise aiming to use such cameras?

(c) Has CBP ever processed images or footage from aerial cameras using
facial recognition, gait analysis, or other biometric identification
technologies?

(d) Is CBP aware of federal, state, local, tribal, or international law
enforcement agencies that have used CBP footage to identify individuals
from footage?

(6) You enclosed a PIA for Aircraft Systems of CBP, as required by federal law. The
enclosed document is dated September 9, 2013. While CBP released a more
recent PIA on April 6, 2018 (DHS/CBP/PIA-018(a)), it is largely limited to
discussions of only small UAS (sUAS), and not other UAS.

(a) The 2013 PIA states that "As technology improves, operating
environments change, and policies adapt, this PIA will be updated and
amended to refresh the analysis of these changes…" Are surveillance
technologies (equipment and software) on any CBP-operated UAS
different from what was used on September 9, 2013?

(i) If so, what are the new surveillance technologies, including but not
limited to all of those discussed in this letter, that are not covered
by the 2013 PIA?

(ii) If so, why has CBP not updated PIA documentation of these
technologies?

(iii) If so, when will CBP update its PIA for these new technologies?

(b) As mentioned in our questions, the 2018 PIA states that "CBP formed a
partnership with the Department of Defense (DoD) to identify and reuse
excess DoD technology." Does this partnership include any surveillance
technologies (equipment and software) on any CBP-operated UAS
(excluding sUAS)?

(i) If so, what are these technologies?

(ii) If so, why has CBP not updated PIA documentation of these
technologies?

(iii) If so, when will CBP update its PIA for these new technologies?
We would appreciate your prompt response to these highly important questions and
requests, and we thank you in advance for your cooperation.

Most gratefully,

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