Xi v. United States – Challenge to Warrantless Surveillance

In May 2015, FBI agents came into Xi’s house with guns drawn and led him away in handcuffs in front of his wife and daughters. The government accused Xi of sharing information about a superconductor device known as a “pocket heater,” relying on email exchanges between Xi and scientific colleagues in China that the FBI had obtained. The government claimed that those communications violated a legal agreement Xi had signed with the company that owned the pocket heater in which he had agreed not to share the technology.

The intercepted emails, however, were not about the pocket heater, but concerned a different kind of superconductor technology that has been public for years. In September 2015, prosecutors were forced to drop the charges. But the damage to Xi and his family was already significant. As a result of the charges, Xi was placed on administrative leave, suspended from his position as the interim chair of the Temple Physics Department, denied access to his lab and the graduate students working under his supervision, and had to pay substantial legal fees to defend himself.

The government spied on Xi using orders issued under the Foreign Intelligence Surveillance Act, which is intended for spying on foreign agents. As the complaint alleges, he was also spied on without any court order under Section 702 of FISA and Executive Order 12333, both of which are used by the government to conduct warrantless surveillance of international communications, including those of Americans.

The government has reportedly engaged in extensive warrantless surveillance of Chinese universities and scientific research centers. It has siphoned communications off servers, computers, and major internet networks that connect many of China’s most prestigious academic institutions. Both the NSA and FBI routinely store the emails and phone calls they intercept in government databases for years, where they can be later searched by analysts and agents who are investigating Americans. FBI agents conduct so-called “backdoor searches” on Americans so often that the government has referred to one of these massive databases as the “FBI’s Google.”

The FBI’s conduct in Xi’s case and others suggests that the government has been targeting Chinese-Americans because of their race or ethnicity. Xi’s case is one of three espionage-related prosecutions of Chinese-American scientists in a 10-month period in which the government abandoned the case before trial. The others include the dismissal of charges against Sherry Chen, a hydrologist with the U.S. National Weather Service in Ohio in March 2015, and Guoqing Cao and Shuyu Li, senior biologists at Eli Lilly & Company in December 2014.

In May 2017, Xi filed a lawsuit against the lead FBI agent in the case, Andrew Haugen, and other agents, alleging that they made knowingly or recklessly false statements in support of the investigation and prosecution. Xi’s wife and oldest daughter later joined the case. The ACLU joined the case in October 2017. The lawsuit asks the court to award damages and to declare that the defendants violated the plaintiffs’ Fourth and Fifth Amendment rights. It also asks the court to order the government to return or delete any of the Xis’ communications that it obtained during the investigation.

In April 2021, the district court dismissed nine of the ten claims in the complaint. The Xis’ appeal of that decision is pending.

The dangers of giving the government such sweeping surveillance powers are real and unmistakable. This case is a glaring example of an innocent American’s privacy rights being grossly violated, with disastrous consequences for Xi and his family.