Sarah Beller [*]

[Full text of this Article in PDF is available at this link]

I.     Introduction

As Professor Xi Xiaoxing and his family slept, a dozen armed Federal Bureau of Investigation (“FBI”) agents broke into their house and arrested him.[1] The government charged Xi with selling trade secrets to China[2] and Temple University subsequently stripped him of his position as Chair of the Physics Department.[3] Professor Xi then received a one-sentence letter:

The United States of America . . . provides notice to defendant Xiaoxing Xi and to the Court, that pursuant to Title 50, United States Code, Sections 1806(c) and 1825(d), the United States intends to offer into evidence, or otherwise use or disclose in any proceedings in the above-captioned matter, information obtained or derived from electronic surveillance and physical search conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended, 50 U.S.C. §§ 1801–1812 and 1821–1829.[4]

As Professor Xi Xiaoxing and his family slept, a dozen armed Federal Bureau of Investigation (“FBI”) agents broke into their house and arrested him.[1] The government charged Xi with selling trade secrets to China[2] and Temple University subsequently stripped him of his position as Chair of the Physics Department.[3] Professor Xi then received a one-sentence letter:

After almost five months of trying to obtain this foreign intelligence evidence, the government gave Professor Xi’s lawyers its supposed smoking gun: a diagram of a pocket heater, a restricted device used to create semiconductors.[5] It immediately became apparent to Professor Xi that the diagram was of a different, unrestricted device. After leading scientists—including a co-inventor of the pocket heater—informed the Department of Justice (“DOJ”) that their case was baseless,[6] the government quietly dismissed the charges by telling the court that “additional information came to [their] attention.”[7]

A decade earlier, Sami Al-Hussayen was completing his Computer Science PhD at the University of Idaho and volunteering as webmaster for a Muslim non-profit that hosted religious websites.[8] The government arrested him in his dormitory and charged him with material support of terrorism based on others’ blog posts on those websites, in addition to visa fraud for not disclosing his volunteer webmaster role.[9] Mr. Al-Hussayen received an almost-identical one-sentence letter notifying him that he had been spied on under the Foreign Intelligence Surveillance Act (“FISA”).[10]

The FBI told Mr. Al-Hussayen that it had intercepted tens of thousands of his calls and emails,[11] but the government refused to declassify the recordings apart from the few it planned to use.[12] Because the recordings were classified, the government did not allow Mr. Al-Hussayen to listen to his own calls, and prohibited his cleared attorneys from discussing them with him to determine which could help his case. Worse, almost all the calls were in Arabic, which his attorneys did not speak, and the defense could not find local translators with security clearances.[13] After ten months of asserting the grave national security risk of declassifying the calls, the government declassified everything the weekend before trial.[14] Despite these litigation hurdles for the defense, the jury found that “[t]here was a lack of hard evidence” for any of the government’s allegations.[15] Ultimately, the jury acquitted Mr. Al-Hussayen of all terrorism charges and hung on all lesser charges.

Ordinary American citizens and residents collaborate on work projects and volunteer for community groups every day. But each year a few dozen people, frequently Muslims and those of Chinese descent, are arrested and sent a notice like the ones Professor Xi and Mr. Al-Hussayen received. This barebones letter thrusts people into the Kafkaesque world of FISA litigation, where they must challenge allegations based on secret evidence they are not allowed to see.[16]

FISA was originally designed to curb government abuses of power. Congress passed FISA[17] in 1978 in response to public concern about warrantless wiretapping and other intelligence scandals.[18] FISA aimed to control extralegal surveillance by requiring advance court authorization; in return, the government could search for foreign intelligence information using a lower standard than that required for a regular criminal investigation. Public transparency was intended to increase efficiency and professionalism and preserve constitutional rights. But FISA’s goals of improving government accountability have failed. Instead, based on even the limited information available to the public discussed in Part I, it is increasingly clear that the intense secrecy surrounding the statute has enabled mass surveillance with little public insight into how the law’s powerful tools are used.

Surveillance under FISA differs dramatically from ordinary searches and wiretapping.  Generally, to search someone’s home or access stored communications, the government must prove to a judge that there is probable cause to believe the subject is involved in criminal activity and that the specific thing to be searched will yield evidence.[19] To intercept communications in real time, the Wiretap Act of 1968 requires the government to explain why less invasive methods are insufficient.[20] In contrast, under FISA, the government does not have to prove probable cause of criminal activity; it simply provides cause that the subject is an “agent of a foreign power” and certifies that a “significant purpose” of the search is to obtain “foreign intelligence information,”[21] all nebulous terms. “Foreign powers” can include any non-domestic political group, such as Greenpeace or Oxfam.[22] Judges on the secret FISA Court (“FISC”) have limited ability to question applications and must grant a surveillance order if the requirements are met.[23] If the subject of an ordinary search warrant or wiretap order is prosecuted, they may see and challenge the warrant or wiretap application and evidence. But under FISA, defendants must challenge surveillance without being allowed to see the application, order, or evidence against them.[24]

These minimal requirements were reduced even further after 9/11. FISA originally required “[t]he purpose” of surveillance to be to obtain foreign intelligence information, meaning that foreign intelligence had to be the government’s primary purpose.[25] The Patriot Act gave the government even more discretion by changing that language to “a significant purpose.”[26] That shift allows the government to use FISA when its primary purpose is ordinary law enforcement, so long as a purpose relates to foreign intelligence.

The standards for surveillance are even lower if the target is not American. In 2008, Congress added a new provision, known as Section 702, that allows the government to obtain yearlong orders to surveil non-Americans abroad, capturing all their communications with almost no restrictions.[27] Section 702 does not require the government to specify the people targeted or demonstrate any probable cause; all that is required is a government certification that the targets are “reasonably believed” to be outside the United States and are not Americans or permanent residents.[28]

Given this lower bar for surveillance, Congress created a notice requirement to increase accountability: FISA requires the government to inform people when it intends to use “any information obtained or derived from an electronic surveillance of that aggrieved person” against them in a court proceeding.[29] As Professor Xi’s notice illustrates, these notices are perfunctory and give almost no personalized information. There is no indication of when or why the surveillance was authorized, or whether the recipient was the target or swept up in an unrelated investigation.

While the notice provision is central to FISA’s accountability goals, there are very few instances of notice actually being provided. Unlike the several hundred thousand people estimated to be spied on under various FISA provisions each year,[30] people who receive notices are the rare few who can prove that they were surveilled. This is critical after the Supreme Court’s 2013 opinion in Clapper v. Amnesty International USA.[31] In Clapper, human rights organizations and defense attorneys challenged FISA’s constitutionality based on their “reasonabl[e] belie[f]” that the government was surveilling their communications with clients, colleagues, and other contacts.[32] The Court rejected the challenge after finding that the harm of such surveillance was not “certainly impending” or “fairly traceable” to FISA.[33] As a result, only people who are certain that they were surveilled have standing to challenge the statute’s constitutionality. A core basis of the Court’s decision was the belief that the government was giving criminal defendants notice of FISA surveillance, and therefore that potential litigants existed who could sufficiently prove standing.[34] After this decision, FISA notice recipients are arguably the only people “Clapper-qualified” to challenge the law.[35]

Despite the importance of these notice provisions for oversight, “discussion of how FISA-derived evidence makes its way into a criminal prosecution is rendered largely an afterthought,”[36] and there has never been a comprehensive investigation of FISA notices. This Article fills that gap by compiling and publishing the first exhaustive set of FISA notices given between 1990 and 2020. Examining the recipients of these notices leads to two main insights.

First, advocates have hypothesized for years that the government disproportionately uses its surveillance and law enforcement powers against Muslim-Americans, and increasingly against Chinese-Americans. The notice recipients show dramatic demographic and ideological disparities that align with advocates’ theories. Although the recipients are a small subset of all FISA targets, they are a rare empirical look at surveillance in practice, and these trends support calls for increased transparency about and scrutiny of FISA usage to ensure that the same troubling patterns are not present in the larger set of targets.

Second, this group is the entire population of instances where the government publicly uses FISA evidence in court. Their cases reveal insurmountable procedural hurdles in litigating against FISA evidence, obstacles that threaten to undermine the adversary system and erase constitutional protections for criminal defendants.

*   *   *

This Article proceeds in five Parts. Part I canvasses the small amount of public information about FISA usage, which shows that hundreds of thousands and potentially millions of Americans are spied on every year. Given the breadth of this government intrusion and the lack of publicly available information, Part I also explains why this notice dataset is a critical window into foreign intelligence surveillance and prosecution. Part II gives an overview of my data collection methodology and provides a descriptive portrait of the notice recipients and their cases.

Part III explains the first contribution of this Article, namely that notice recipients show dramatic demographic and ideological disparities that warrants greater transparency about FISA usage. Part III outlines academics’ hypotheses that FISA disproportionately targets Muslims, Chinese-Americans, and immigrants for surveillance while excluding internationally linked white supremacists. I then discuss findings about the demographics of people who receive notices and the outcomes of their cases. I find that a significant proportion were not charged with any terrorism- or national security-related offenses, despite the government claiming links to terrorist groups. In addition, the terrorism-related charges seemed weaker than those in other federal cases, as FISA defendants were acquitted and had charges dismissed at appreciably higher rates than usual. I then consider implications of these findings for FISA reform efforts.

Parts IV and V discuss the second contribution of this Article: these FISA cases reveal insurmountable procedural hurdles that erode constitutional protections for criminal defendants. Part IV examines the difficulties of litigating against FISA evidence, which include secret and unchallengeable warrants and limited access to classified evidence. I find that people rarely file motions relating to FISA evidence—and when they do, they are almost uniformly denied. These obstacles distort the functioning of the adversary system and raise substantial fairness concerns, since non-FISA defendants charged with similar crimes have significantly greater ability to challenge the evidence against them.

Part V discusses constitutional concerns with FISA, particularly as amended by the FISA Amendments Act and Patriot Act, and analyzes the dearth of public court decisions considering the statute’s constitutionality. I find that very few notice recipients make constitutional challenges, mainly those represented by a small cadre of experienced defense attorneys. The lack of litigated challenges combined with minimal judicial inquiry raises concerns about missing oversight of this wide-reaching law.

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[*] Law Clerk, U.S. District Court for the Central District of California.

[1] Matt Apuzzo, U.S. Drops Charges That Professor Shared Technology with China, N.Y. Times (Sept. 11, 2015), https://www.nytimes.com/2015/09/12/us/politics/us-drops-charges-that-professor-shared-technology-with-china.html [https://perma.cc/3BBP-VJ88].

[2] Indictment, United States v. Xi, No. 2:15-cr-00204 (E.D. Pa. May 14, 2015), ECF No. 1.

[3] Apuzzo, supra note 1.

[4] Notice of Intent to Use Foreign Intelligence Surveillance Act Information, United States v. Xi, No. 2:15-cr-00204 (E.D. Pa. June 9, 2015), ECF No. 16.

[5] Apuzzo, supra note 1.

[6] Id.

[7] Government’s Unopposed Motion to Dismiss, United States v. Xi, No. 2:15-cr-00204 (E.D. Pa. Sept. 11, 2015), ECF No. 29.

[8] Indictment at 6–7, United States v. Al-Hussayen, No. 3:03-cr-00048 (D. Idaho Feb. 13, 2003), ECF No. 1.

[9] Superseding Indictment, United States v. Al-Hussayen, No. 3:03-cr-00048 (D. Idaho Jan. 9, 2004), ECF No. 378.

[10] Notice of Intent to Use Foreign Intelligence Surveillance Act Information, United States v. Al-Hussayen, No. 3:03-cr-00048 (D. Idaho Mar. 11, 2003), ECF No. 33.

[11] Memorandum in Support of Motion to Suppress at 3, United States v. Al-Hussayen, No. 3:03-cr-00048 (D. Idaho June 27, 2003), ECF No. 90.

[12] Memorandum in Support of Motion to Declare CIPA Unconstitutional as Applied at 1–2, United States v. Al-Hussayen, No. 3:03-cr-00048 (D. Idaho Feb. 17, 2004), ECF No. 446.

[13] Id. at 3–4.

[14] Motion in Limine (FISA derived evidence) at 2, United States v. Al-Hussayen, No. 3:03-cr-00048 (D. Idaho Apr. 16, 2004), ECF No. 578.

[15] Associated Press, No Conviction for Student in Terror Case, N.Y. Times (June 11, 2004), www.nytimes.com/2004/06/11/us/no-conviction-for-student-in-terror-case.html [https://perma.cc/4FKS-EPYP].

[16] See infra Part IV.

[17] Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, § 102, 92 Stat. 1786 (1978).

[18] The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, known as the Church Committee, investigated intelligence abuses from 1975 to 1976. The information released (or leaked) caused significant public outrage. See generally William Safire, Inside Church’s Bunker, N.Y. Times (Mar. 4, 1976), timesmachine.nytimes.com/timesmachine/1976/03/04/75577234.html [https://perma.cc/PG2L-VWQW] (mentioning a CIA-run “illegal domestic intelligence operation” and the wiretapping of Dr. Martin Luther King, Jr. as among the report’s contents).

[19] See U.S. Const. amend. IV.

[20] Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2518(3)(c) (1986).

[21] 50 U.S.C. §§ 1804(a)(3), 1823(a)(3); 50 U.S.C. §§ 1804(a)(6)(B), 1823(a)(6)(B).

[22] See, e.g., id. § 1801(a)(5).

[23] See id. § 1805(a).

[24] Id. §§ 1806(f), 1825(g), 1845(f).

[25] See United States v. Truong, 629 F.2d 908, 915 (4th Cir. 1980) (“[T]he executive should be excused from securing a warrant only when the surveillance is conducted ‘primarily’ for foreign intelligence reasons.”).

[26] USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 291 (2001) (amending 50 U.S.C. §§ 1804(a)(7)(B), 1823(a)(7)(B)).

[27] 50 U.S.C. § 1881a.

[28] Id.

[29] Id. §§ 1806(c) (electronic surveillance), 1825(d) (physical searches), 1845(c) (pen register/trap-and-trace surveillance), 1880e(a)(1), 1880e(b) (international surveillance).

[30] See infra Part I for estimates from public disclosures.

[31] 568 U.S. 398 (2013).

[32] Complaint at 2, Amnesty Int’l USA v. McConnell, No. 1:08-cv-06259 (S.D.N.Y. July 10, 2008), ECF No. 1.

[33] Clapper, 568 U.S. at 414.

[34] Id. at 421.

[35] Order Denying Motion to Suppress Evidence Obtained or Derived Under FISA Amendments Act or for Discovery at 3, United States v. Muhtorov, No. 1:12-cr-00033 (D. Colo. Nov. 19, 2015), ECF No. 885.

[36] Wadie E. Said, Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions 78 (2015).