In what defense attorneys are calling a "breathtaking and unprecedented" abuse of power, a top secret government court has authorized the surveillance of two Chinese nationals accused of stealing genetically modified (GM) seed technology from biotech giants DuPont Pioneer and Monsanto, according to court documents and reported by the Des Moines Register on Monday.
Federal investigators reportedly sought approval from the Foreign Intelligence Surveillance Court, also known as the FISA court, which is best known for rubber stamping the NSA's sweeping surveillance program for the powers to spy on the communications of siblings Mo Hailong and Mo Yu in an attempt to connect the two employees of the Beijing-based DBN Group, a conglomerate that owns a seed company, with the Chinese government.
However, rights advocates and attorneys representing the pair say that the government is conflating a trade dispute with a national security threat in order to protect the interests of the powerful biotechnology industry.
"For the first time in the statute's history (as far as our research reveals), the government used FISA to investigate a trade secret dispute between two privately owned companies."
—Mark Weinhardt, Defense attorney
"FISA was intended to capture information about national security-type threats," Faiza Patel, a national security expert with the Brennan Center for Justice, told the Register. "It wasn't meant to capture ordinary crime, such as violating trade secrets."
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Defense attorney Mark Weinhardt has filed a motion to suppress evidence gathered under FISA from being introduced during the siblings' trial, which is scheduled for Sept. 14. As Patel noted, the lack of transparency surrounding the FISA court makes challenging evidence nearly impossible.
"This case involves a breathtaking and unprecedented expansion of the government's use of the Foreign Intelligence Surveillance Act," Weinhardt wrote in the motion. "For the first time in the statute's history (as far as our research reveals), the government used FISA to investigate a trade secret dispute between two privately owned companies."
According to court records, "prosecutors have turned over to defense attorneys a mountain of more than 500,000 documents, 50 hours of audio tapes and two years' worth of surveillance footage generated by the investigation," the Register reports. The FBI's investigation into the seed stealing plot began in 2011 after a DuPont Pioneer field manager found Mo Hailong, "nervously" digging in one of the company's test fields.
If convicted, the two could face a maximum 10-year prison sentence.