Issue 16 / Clouds

March 27, 2022
Old-school browser window with an image of a paperwork and a quadcopter drone, partially obscured by misty clouds

Black Boxes

Lilly Irani, Jesse Marx

A case study in the difficulty of making public information public.

Adapted from Redacted (Taller California, 2021)

San Diego is one of the most surveilled places in the United States. Located on the border with Mexico, America’s Finest City is host to one of the largest US Navy bases and a wide array of government agencies that see technology as the key to better managing public infrastructure, tracking the movements of people, and solving crimes. Hidden behind a veil of public safety and national security, the spyware is often invisible to the public.

For years, officials have been rolling out technologies that they don’t totally understand and with little to no meaningful oversight, turning San Diego into a laboratory for the rest of the country. The residents here did not consent to this development, let alone vote on it—a reality that pits the interests of public planning and law enforcement against the civil liberties and civil rights of everyone else.

It’s also common to find that technological experimentation in San Diego serves the interests of private companies with something to sell. General Atomics is one of these companies. In 2020, the defense contractor decided to repurpose its Predator and Reaper drones as the benign-sounding SkyGuardian and SeaGuardian. But before General Atomics could test out one of its drones above San Diego, it needed permission from the Federal Aviation Administration (FAA). The airspace above the city is a highly restricted place, where unmanned aircraft cannot typically fly.

The San Diego test flight was supposed to demonstrate that the new drone, the SkyGuardian—weighing up to 12,500 pounds, with a wingspan of seventy-nine feet—could safely travel over a dense metro area while surveilling infrastructure and the natural landscape. San Diego and its people would be props in General Atomics’ killer demo.

The company described the drone as a “persistent eye in the sky.” It was an unprecedented project that had the potential to open the airways above major US cities to new forms of surveillance.

How were regulators evaluating the technology? Had there been any external influence—from, say, the Pentagon or the White House—to force the project through? These were pressing questions, especially because a similar drone from US Customs and Border Protection had experienced mechanical failure and crashed in the waters outside the city in 2014.

So, in late March 2020, with the test flight about to take place any day, a journalist at the nonprofit news organization Voice of San Diego requested all public records related to the test flight from the FAA, including communications with the defense contractor.

Complying with the request wasn’t easy. The FAA has five divisions spread across the country. By design, the agency’s public records response is decentralized. Getting the SkyGuardian off the ground required the work of three different units, each of which needed to produce—and redact—the records in its possession. Voice of San Diego filed a lawsuit to speed up the process and, in September 2020, a judge ordered the FAA to hurry up or face penalties. The pressure was on. The agency had six weeks.

The Minimum Amount of Redactions

Two months after the original request was filed—well past FOIA’s legal deadline of twenty business days—Rick Perez got the assignment in the FAA’s air certification branch. Perez had been with the FAA since 2011, and his staff was also in the middle of processing more than sixty requests for huge volumes of records related to the certification of the Boeing 737 MAX, two of which had crashed in 2018 and 2019, killing a total of 346 people. Perez’s branch consisted of three federal employees and four contractors. The SkyGuardian was just a blip on their radar.

Perez’s staff consulted with other experts in the agency, ran an initial query with keywords, and then set about reading through the more than 2,500 pages they had identified. During their line-by-line reviews, it became clear that other organizations might have a stake—and a legal claim—to withhold information about the SkyGuardian, not just the FAA.

NASA, for instance, had been partnering with General Atomics on the test flight. Both organizations needed to be consulted. Both would drag their feet. And both would then turn around and make cases to the FAA in private that certain documents and communications ought to be treated as confidential. General Atomics argued that some of the information contained in the records was protected by the US Arms Export Control Act, which deals with the sale of weapons overseas. This by itself was revealing: the test flight was not just about showing local officials the ways in which they could monitor infrastructure from above. The test flight was intended as a marketing ploy for international buyers.

For this reason, Perez discovered, the Department of Defense also needed to weigh in. That slowed the process down even further. In October 2020, he provided the court with an update, arguing for more time—but promised to release everything in his possession “with the minimum amount of redactions.” Here’s a taste of what he produced: 

Still, there were some revelations visible between the blacked-out lines. What the FAA released showed that regulators did not believe the drone could fly safely above so many people. Regulators had demanded the company use a “chase plane,” manned with a pilot who could monitor the drone in real-time for any problems. Instead of complying with the request—which might have given the international buyers doubts about the technology’s true capabilities—the company rerouted the flight path and pushed the demo into the desert.

But as it turns out, different units within the FAA had similar records in their possession and redacted them in different ways. The FAA wound up producing the same emails in redacted and unredacted forms, inadvertently revealing how subjective the process really is. What to keep and what to omit appeared to be dependent on the momentary feelings and fleeting judgments of whoever was doing the redactions.

The email conversations show FAA employees casting doubt on General Atomics’ claim that their technology is safe. In one email, an FAA employee notes that the company is “worried about getting an approval” and that time will run out before the permit process can be completed because, “as usual, they have diplomats from the military attending and want to demonstrate the capability.”

Secrecy is the way in which government agencies reveal their mistrust of the people. The cloak is needed, you’ll often hear officials say, to keep everyone safe. But safe from what? Or better yet, from whom? Secrecy breeds its own kind of distress, encouraging a fear of the unknown that justifies new levels of authority in a slow-moving but perpetual crisis. 

Secrecy and surveillance are two sides of the same coin. Both stem from an attitude that the people atop our institutions know better than the rest of us how to govern and structure society. Both engender mistrust and inhibit collective action. They engender mistrust by encouraging us to outsource responsibility for safety. This inhibits collective action, not only by chilling our speech and association but by ceding authority to institutions we mostly do not participate in. 

Do It Yourself

Why would I, of all people, want to seek a public record?

It could be to learn about an issue that affects you or your community. It could be to find more bulletproof evidence of something you know or suspect that will help with your advocacy work. It could be an entry point into the workings of politics or profit by finding the traces left behind by the companies that interact with the government.

How do I get started?

Don’t be intimidated. We had no idea what we were doing when we got started either. No one is born with this knowledge.

Explore the public records universe to get a sense of the mechanics. Public records are informational arcana produced through the rituals of politicians, functionaries, and bureaucrats. It is hard to know what to ask for if you don’t have a sense of how they organize their world and their work within it. 

Check online to see if the agency you’re targeting has an open data portal, then start by trawling for topics that you’re interested in. Some public agencies and cities, including Los Angeles, New York City, and San Diego, have websites that allow you to search for the records others have already requested using keywords. You can then dive into the rabbit hole of what’s already been made available. Browsing the records gives you a sense of what kinds of departments exist within those agencies, what kind of records they produce, what kinds of things other people ask for, and how they ask for them.

What kind of records could address my question?

Records may not be available to answer your exact question, but there may be records that give you some pieces of an answer. Possible records include email communications, presentations, memoranda of understanding, policy and procedure manuals, government filings, and contracts.

It can help to speak with people who interact with the government a lot. Activists, lawyers, and policy nerds can help you brainstorm based on their experiences requesting and filing documents. Again, browsing existing open records portals can also give you ideas. There is no shame in starting your request by copying and pasting another request you find and submitting it with the tweaks that get at the specific information you want. We do this all the time. You can also check the agency’s website to get a sense of the kind of forms and records they describe working with publicly. 

Which public entity has the records I want?

Determining this is key. After you figure out what you want to know, figure out who has it. The San Diego Police Department? The National Labor Relations Board? The Food and Drug Administration? Cities will often have a clerk who you can call and talk to—an act of bureaucratic goodwill or perhaps a legal requirement, depending on the state. Networking with others who work on the topic you’re interested in can also help. You may encounter hostility from some agencies, but remember, at least California requires that officials help you route your request to the correct departments.

The entity should have a website explaining their public records procedure, often with an online form. Plan ahead, as it can take months to get the records you request—and that’s if you’re lucky. The agency may also charge you for requests beyond a certain number of pages. You’re also within your rights to request that they waive those fees.

Transparency is a constant struggle. It helps to have allies. Are there organized groups—unions or community organizations, for example—that have a stake in the issue you’re trying to bring to light? They may have background knowledge about the politics behind the records you seek. They may have access to lawyers who can help you navigate local public records laws. They might want to help you make sense of the records you get because it benefits them too.

Finally, if you want to know more because you want to change something about the way the world works, you’ll need to join with others to make it happen. Being frustrated and alone is a trash feeling.

Jesse Marx is a journalist at Voice of San Diego and the author of Redacted.

This piece appears in Logic's issue 16, "Clouds". To order the issue, head on over to our store. To receive future issues, subscribe.