"How a Case of Stolen Corn Seeds Show the Problem with the FISA Court" by Faiza Patel, originally published on Just Security, on April 1, 2015.
As collateral challenges to the mass surveillance programs disclosed by Edward Snowden like US v. Moalin, US v. Muhtorov, and US v. Mohamud are winding their way through the courts, a lower-profile case — U.S. v. Hailong — is raising the issue of whether a Chinese company’s plot to steal corn seed warrants the use of the Foreign Intelligence Surveillance Act (FISA). This case highlights the near impossibility of effectively challenging the use of these authorities, even in cases of targeted surveillance.
The story begins, according to the government, in an Iowa cornfield in 2011. One of the defendants, Mo Hailong, a Chinese national and permanent US resident employed by a Chinese agricultural conglomerate, asked a farmer what he was growing. The farmer was under contract with a company called Pioneer to cultivate its proprietary inbred test seeds. The next day, Mo was found by a company field manager, on his knees in the same field while one of his compatriots waited in a car. All this was reported to the FBI during “a routine liaison visit” to the company. Some months later, Mo and other defendants were stopped by a sheriff responding to reports that an Asian male was acting suspiciously near another cornfield. The field was planted with bio-engineered corn seed — this time from Monsanto. It’s not clear how the FBI found out about the latter incident, but by February 2012, they were on the trail of Mo and several other defendants. In addition to physical surveillance, the Bureau intercepted their mail, listened in on phone calls, installed GPS tracking and audio listening devices in their rental car, and caused their luggage to be searched by customs agents. In December 2013, six persons were charged with one count of conspiracy to steal trade secrets. (A seventh defendant was subsequently charged in July 2014.)
In March 2014, Mo was notified, pursuant to 50 U.S.C. sections 1806(c) and 1825(d), of the government’s intention to use information “obtained or derived from electronic surveillance or physical search” pursuant to FISA.
As part of the discovery process, Mo asked the government to specify the legal authority for each piece of evidence obtained by search and seizure — i.e., whether it was obtained pursuant to a regular search warrant or an order from the FISA Court or other covert methods. This was necessary, Mo argued, to allow him to “formulate coherent motions to suppress.” The judge denied the motion, reasoning that its purpose — to allow a challenge to the legality of FISA surveillance — must be met “at least begin with an ex parte in camera review of the FISA dockets.” This forthcoming review would be “comprehensive and de novo, and will evaluate all requirements needed to establish the surveillance’s legality.” Mo was ordered to file any motion to suppress, even though it would “necessarily be generalized and speculative.”
The defense moved to suppress evidence obtained under FISA, arguing that the case has nothing to do with foreign intelligence, but rather is about “an alleged effort by one privately-owned company to steal non-defense-related trade secrets from another privately-owned company.” In order to obtain a FISA surveillance order for electronic or physical searches, the government had to demonstrate probable cause that Mo was an agent of a foreign power, in this case presumably China. The defense took this on by submitting an expert affidavit explaining that Mo’s employer is not owned or controlled by the Chinese government. But the defense is making this argument in a vacuum. The identity of the target of surveillance is unknown and it’s entirely possible that a FISA order was issued against a third-party who was reasonably suspected of being an agent of a foreign power. And of course, the government may have submitted evidence suggesting that despite the formal ownership structure, there are other reasons to believe that either Mo or his employer was in fact directed and controlled by the Chinese government. Mo’s lawyers are no position to refute that allegation.
Additionally, as the defense noted, when claiming that an American citizen or permanent resident is an agent of a foreign power, the government must show that he is knowingly engaging in “clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States.” Legislative history unearthed by the defense demonstrates that Congress intended this provision to permit FISA surveillance where a foreign agent was “collecting industrial or technological information which, if disclosed to a hostile foreign power, might present a threat to the security of the nation.” Normal corporate espionage, the legislative history suggests, is outside the scope of FISA. Since corn seeds hardly seem to present a threat to national security, the defense argued, the use of foreign intelligence authorities was incorrect. (More recently, concerns about economic espionage led President Obama to issue a policy directive clarifying that the NSA is not permitted to collect commercial information “to afford a competitive advantage to U.S. companies and U.S. business sectors commercially.”) But this argument too runs up against the lack of information about what or who the government was tracking through FISA.
Finally, the defense mounted a robust challenge to the government’s certification that the information sought could not be obtained by “normal investigative means” (required under FISA and reviewed by the FISA court for clear error). The host of “normal” techniques used in the case — search warrants, national security letters, requests for stored e-mails under 18 U.S.C. section 2703, and location information from cameras — demonstrate that FISA surveillance was unnecessary, the defense argued. Given the low standards required to obtain information through some of these techniques, it does seem puzzling that the government chose to go through the trouble of obtaining a FISA order. Again, the lack of context stymies any effort to understand how this came about.
It’s no surprise that Mo has also filed a motion seeking access to the underlying FISA documentation in order to promote an accurate determination of the legality of FISA surveillance via an evidentiary hearing and to protect his due process rights.
Notably, the defense has proceeded on the assumption that this case involves traditional FISA surveillance. This is reasonable: the notice given to defendants references the portions of the statute that were enacted in 1978 rather than newer provisions that authorize mass surveillance. But that doesn’t necessarily mean that mass surveillance authorities were not used in this case, possibly before the traditional FISA orders were issued. The government recently started notifying criminal defendants that it plans to use information derived from the collection of international communications under Section 702 of the 2008 FISA Amendments Act in proceedings against them. But, as explained on the pages of this blog, it still believes itself under no obligation to provide notice when it collects information under Executive Order 12333 or Section 215 of the Patriot Act.
If Hailong goes the way of all of the other FISA criminal cases, we’re not likely to find out too much more. The only district court to order the government to turn over FISA documentation was overturned by the 7th Circuit Court of Appeals. Judge Rovner of that court recognized in her concurring opinion that:
Thirty-six years after the enactment of FISA, it is well past time to recognize that it is virtually impossible for a FISA defendant to make the showing [required] in order to convene an evidentiary hearing."
This was not what Congress intended when it included notice provisions in FISA and, at a time when faith in the foreign intelligence system has been badly shaken, is an unsatisfactory result.