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Following up on a May by the Washington Post about mysterious aircraft spotted circling over Baltimore, the Associated Press today that the FBI maintains a secret air force with scores of small aircraft registered with 13 front companies under apparently false names, and that these planes fly over American cities frequently.

Obviously law enforcement has been using aircraft for many decades. So what鈥檚 spooky about this story? Several things:

• These are not your grandparents鈥� surveillance aircraft. As I discussed when the Baltimore story broke, there are several very powerful mass-surveillance technologies that utilize low-circling manned aircraft, including 鈥溾�� and persistent wide-area surveillance in which an entire 25-square mile area can be monitored, and vehicles tracked, for extended periods of time by a single camera.
• We need more information about the scope of surveillance these planes are being used for. The FBI told the AP that its fleet was 鈥渘ot equipped, designed or used for bulk collection activities or mass surveillance.鈥� We are glad to hear that鈥攂ut that statement bears more interrogation. For example the AP that the FBI 鈥渙ccasionally鈥� uses Dirtboxes (aka 鈥淚MSI catchers鈥� or 鈥渃ell-site simulators鈥�) on the aircraft. Those certainly qualify as mass surveillance devices. If the FBI is only using the aircraft when it has a specific target rather than for broad fishing expeditions, that would be a good thing鈥攂ut that is not the same thing as saying that data on masses of people is not being swept up.
• The FBI told the AP that 鈥渦nder a new policy it has recently begun obtaining court orders to use cell-site simulators.鈥� But we don鈥檛 know what kind of 鈥渃ourt orders鈥� they鈥檙e getting to use the devices. Rather than warrants, they may just be obtaining 鈥減en register鈥� orders, as we have seen done by local police in Baltimore and elsewhere.
• The sheer scope of the program. A 2010 federal budget document found by the AP mentions at least 115 planes in the FBI鈥檚 fleet, and the FBI has flown over 100 flights over more than 30 American cities in recent weeks, the AP found.
• Surveillance turning inward. One trend we鈥檝e seen in the last 15 years or so is a great 鈥淭urning Inward,鈥� as US surveillance capabilities originally built to spy on the Soviet Union and other overseas targets have swung inward on the American people. The FBI has a spy plane fleet, hidden behind shell companies with three-letter names and headed by ghost CEOS with signatures that don鈥檛 match over time鈥� it鈥檚 all very CIA. Yet these are American cities that they鈥檙e flying over.
• Cessnas today, drones tomorrow. Another thing that makes these flights spooky is the prospect that manned aircraft may soon be replaced with drones. And that will make it all the cheaper and easier to deploy these flights all the more frequently over even more American cities and towns. And unlike manned aircraft, drones may not be easy to track through web sites like , which shows the manned aircraft currently in the air around the world and played a key role in uncovering the FBI鈥檚 air force. It is true that under from President Obama the DOJ recently promulgated a for its use of drones, but that policy is not very airtight鈥攆or example, it says DOJ agencies can鈥檛 use the planes 鈥渟olely for the purpose of monitoring activities protected by the First Amendment.鈥� That is good, but when agencies want to do surveillance they always claim to have other reasons so the monitoring is not 鈥渟olely鈥� for such monitoring.

In the end, it doesn鈥檛 make sense for drones to be subject to privacy regulations, but not manned aircraft. Manned aircraft can and do raise very real privacy concerns; for example their use in persistent wide-area surveillance, and in . But manned aircraft are not regulated today, because historically they have been expensive and their use therefore relatively rare, and their surveillance abilities well-understood and relatively limited. What this story tells us is that their use is now more widespread than we thought鈥攁nd we know their surveillance capabilities are growing by leaps and bounds. Drones, by raising the prospect of endless free and easy aerial surveillance, have brought to the fore issues that already existed with manned aircraft, and new regulations designed to protect against aerial surveillance should not distinguish between manned and unmanned aircraft.