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Warrantless Surveillance

The domestic surveillance over American citizens for whom there is no evidence or proof that they are involved in any illegal activity.

THE NUMBERS

Pending cases

5

Failure-to-disclose cases

91%

Days of the China Initiative

1210

Recent developments

The U.S. Constitution protects its people against unreasonable searches and seizures.
Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), the U.S. government engages in mass, warrantless surveillance of Americans’ and foreigners’ phone calls, text messages, emails, and other electronic communications. Information collected under the law without a warrant can be used to prosecute and imprison people, even for crimes that have nothing to do with national security. Given our nation’s history of abusing its surveillance authorities and the secrecy surrounding the program, we should be concerned that Section 702 is and will be used to disproportionately target disfavored groups - whether minority communities, political activists, or even journalists.

The Foreign Intelligence Surveillance Act

​Growing out of the Watergate scandal when federal resources were used to spy on domestic political and activist groups, The Foreign Intelligence Surveillance Act (FISA) was introduced by Senator Ted Kennedy (D-MA) and signed into law by President Jimmy Carter in 1978. As its title suggests, the law was created to “provide judicial and congressional oversight of the government’s covert surveillance activities of foreign entities and individuals in the U.S., while maintaining the secrecy needed to protect national security.”  

Soon after the 9/11 terrorist attacks in 2001, the George W. Bush Administration began a series of questionable secret surveillance practices, including warrantless domestic wiretapping. Major amendments to FISA were subsequently made to legitimize and empower some of these secret operations.  FISA was transformed into massive warrantless surveillance programs shrouded in secrecy, and Chinese Americans are disproportionately impacted.

FISA Amendments Act of 2008

The FISA Amendments Act of 2008 was enacted in 2008. It added a new Title VII to FISA, authorizing targeting of non-U.S. persons outside the U.S.. Section 702 spells out additional limitations to such surveillance. It was specifically stated that the surveillance must be conducted in a manner consistent with the Fourth Amendment to the United States Constitution.    

Reauthorization of FISA Amendments Act in 2012 and 2017

President Barack Obama reauthorized the FISA Amendments Act in 2012 for five years before Edward Snowden made astonishing disclosures in 2013 about how the government manipulates its power to conduct secret, warrantless mass surveillance programs on U.S. persons in violation of their constitutional rights. Some of the subsequently known problems such as “about communications,” “backdoor searches,” “parallel construction” and “reverse target” are described in the blog titled “One Asian American’s Perspective on the FISA Amendments Act and Section 702.”     

President Trump signed ​the FISA Amendments Reauthorization Act of 2017 into law. The current authorization will expire on December 31, 2023.

Asian Americans Disproportionately Impacted

No person of Chinese origin was known to be part of the 9/11 or other terrorist attacks. Section 702 has always been claimed to be a vital tool to combat terrorism since 2008. However, soon after Section 702 became law, the Department of Justice (DOJ) and the Federal Bureau of Investigations (FBI) declared that economic espionage is a major security threat to the U.S. and started publicity campaigns with China as the major culprit.

In May 2017, the Committee of 100 presented a white paper, “Prosecuting ‘Chinese Spies’: An Empirical Analysis of the Economic Espionage Act” by legal scholar Andrew Kim of South Texas College of Law. Among other disturbing findings, the study showed an immediate spike in prosecutions against Asian Americans in 2008. A series of innocent naturalized Chinese Americans in private industry, federal government, and academia were accused of spying for China, but all of them were subsequently dismissed without an explanation, much less an apology, from the government.

Despite the heroic efforts of individuals to defend themselves against all odds, they and their families have already suffered devastating damages in legal expense, emotional trauma, and overall reputation.

During the last reauthorization cycle in 2017, APA Justice set up a website APA FISA Watch to track the actions undertaken by the APA Justice Task Force and concerned organizations.

Serious Constitutional Issues

When the FISA Amendments Act was last due for reauthorization in 2012, little was known about the warrantless, mass surveillance programs because they were shrouded in secrecy. Today, we know that even the FISA court had sharply criticized in its written opinion (declassified in April 2017) that the government reporting efforts were lacking in “institutional candor” and represent “a very serious Fourth Amendment issue.” This same FISA court has approved more than 99.5% of the government’s requests since the enactment of FISA in 1978.    

FISA and its amendments are not the only laws subject to misuse and abuse by the authorities in the name of national security. The magnitude of their adverse implication and impact has been difficult to assess due to the inherent secrecy and complexity.  

With what little that has been made public, we know that protection for privacy and civil liberty has been grossly inadequate under FISA and its amendments. The government must not continue to use innocent, law-abiding Asian Americans as “collateral damage,” convenient scapegoats, or targets of racial profiling without accountability.

“Traditional” FISA, which requires lengthy applications to the secret FISA court, was used in fewer than 500 cases last year. Section 702, which doesn’t require individual court orders, can cover orders of magnitude more targets: more than 230,000 in 2021.

​The ACLU represents Xiaoxing Xi, a Chinese-American physics professor at Temple University, who is suing the government over its dismissed prosecution of him for supposedly sharing sensitive technology with scientists in China. The lawsuit, filed in 2017, challenges the FBI’s baseless arrest of Xi and its surveillance methods as well as its discriminatory targeting of Chinese-American scientists. 

Xi v. United States

A Warrantless Surveillance Court Battle

FOIA Request 245561 to the NIH

Days Since FOIA Request Submitted

738

foia2nih_20210802.pdf

Download FOIA Request

APA Justice submitted a Freedom of Information Act (FOIA) request for records pertaining to the effort by  the National Instututes of Health (NIH) to investigate over 500 U.S.-based scientists and researchers believed to have connections to China.

The filing date of record is August 9, 2021.  The assigned tracking number is 245561.

The request covers the following records created on or after January 2011:

  1. Records containing statistics or data concerning the race, ethnicity, or national origin of scientists who have been “flagged,” subject to scrutiny, or investigated for their purported foreign ties, or records sufficient to show this information.

  2. Records containing statistics or data concerning the number of scientists in each of the following categories who have been “flagged,” subject to scrutiny, or investigated as the result of (a) NIH cooperation with law enforcement agencies; (b) anonymous complaints; and (c) stewardship of NIH program staff, or records sufficient to show this information.

  3. Records containing statistics or data concerning the race, ethnicity, or national origin of scientists in each of the following categories who have been “flagged,” subject to scrutiny, or investigated as the result of (a) NIH cooperation with law enforcement agencies; (b) anonymous complaints; and (c) stewardship of NIH program staff, or records sufficient to show this information.

  4. Records describing the methods by which individuals subject to NIH scrutiny or investigation were identified for investigation, including but not limited to NIH cooperation with law enforcement agencies, anonymous complaints, and stewardship of NIH program staff.

 

We thank Yale University student Alex Liang for his research and preparation of this FOIA request.

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