美国宪法的前十项修正案，统称为“权利法案”（Bill of Rights），于1791年由美国国会通过，并由各州批准。
第五修正案的最终目标是确保人民在法律诉讼过程当中受到平等的法律保护(Equal Protection)，和司法公正（Due Process）。
恶意检控 (Malicious Prosecution)
违反平等保护和正当司法程序 (Equal Protection and Due Process Violation)
非法搜索和扣押 – FISA监视令 (Unlawful Search and Seizure – FISA Orders)
非法搜查和扣押 – 无证监视 (Unlawful Search and Seizure – Warrantless Surveillance)
非法搜查和扣押财产 (Unlawful Search and Seizure of Property and Belongings)
Jeremy S. Wu, Ph.D.
May 31, 2017
The recent civil suit filed by Temple University Professor Xiaoxing Xi [1, 2, 3] has strong implications and lasting meaning for every U.S. person, especially those of Chinese origin. Here a “U.S. person” has legal meaning  that covers any U.S. citizen or alien admitted for permanent residence in the U.S., and any entity organized under U.S. laws.
Professor Xi’s suit is a reminder that a U.S. person has rights under the Constitution and he is protected by laws. Few can dispute the need for national security and the freedom we enjoy from a strong nation. However, targeting innocent people by race or national origin and abusing authority in the guise of national security ruin lives and violate our constitutional rights. A U.S. person may sue the government as a result of these violations.
This blog offers personal observations and an overview of the background and environment that contribute to the suit. Four suggestions are provided on how individuals and organizations may help Professor Xi’s cause and the community:
Educate ourselves and publicize our support for Professor Xi
Donate to Professor Xi’s legal defense fund at http://www.xiaoxingxi.org/
Engage your elected representatives and participate in the process to reform legislations and protect our rights
File amicus briefs  in support of Professor Xi when they are appropriate
The Fourth and Fifth Amendments of the U.S. Constitution
The first ten amendments to the U.S. Constitution, collectively known as the Bill of Rights, were passed by Congress and ratified by states in 1791.
In particular, the Fourth Amendment  states that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The ultimate goal of the Fourth Amendments is to protect people’s right to privacy and freedom from arbitrary governmental intrusions.
In addition, the Fifth Amendment  states that:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The ultimate goal of the Fifth Amendment is to ensure equal protection and due process relevant to legal proceedings respectively.
Over time, new laws and court decisions provide refined interpretations and support to these fundamental constitutional rights. For example, as we moved into the Information Age, the Supreme Court  held in 1967 that the requirements of the Fourth Amendment applied equally to electronic surveillance and to physical searches.
As the power of technology to rapidly compile and merge large amounts of electronic data began to grow, the Privacy Act  was created in 1974 to “safeguard individual privacy from the misuse of Federal records” and “to provide that individuals be granted access to records concerning them which are maintained by Federal agencies.”
Mass Surveillance in the U.S.
Mass surveillance by the U.S. government  reportedly dates back to the First World War with the enactment of the Espionage Act  in 1917.
The Watergate scandal in the 1970s revealed that President Richard M. Nixon used federal resources, including law enforcement, to spy on domestic political and activist groups. Senator Frank Church led a U.S. Senate Committee  to investigate the abuses by the intelligence and other federal agencies in 1975.
Subsequently in 1978, the Foreign Intelligence Surveillance Act (FISA)  was created to “provide judicial and congressional oversight of the government’s covert surveillance activities of foreign entities and individuals in the United States.”
FISA allows the government to seek a court order permitting the surveillance for up to a year. A designated FISA court must find probable cause and specific places of surveillance before approving a FISA application. The court must find that the proposed surveillance meet certain “minimization requirements” for information pertaining to U.S. persons. Minimization  is the legal term for “the constraints placed upon the government’s ability to retain non-relevant private information collected legally.”
In 1981, President Ronald Reagan signed Executive Order 12333 [14, 15] to extend the powers and responsibilities of U.S. intelligence agencies, further expanding their data collection and surveillance activities.
The Economic Espionage Act (EEA) [e.g., 16, 17] was enacted in 1996, making the theft of trade secrets to benefit a foreign power or to injure the owner of trade secrets a federal crime. EEA differs from the Espionage Act of 1917 by covering commercial information instead of classified or national defense information.
The 9/11 attacks in 2001 shook the nation and the world. The U.S. government rushed to strengthen security controls and enacted the Patriot Act  on October 26, 2001. It began to tilt the delicate balance between civil liberty and national security. The Patriot Act generated numerous controversies about violations of constitutional rights, especially the Fourth Amendment, that are continuing today. It is noteworthy that no Chinese person was ever implicated in the terrorist attacks.
In the aftermath of the 9/11 attacks, the George W. Bush administration also initiated a series of secret warrantless wiretapping programs, which include monitoring of the telephone, email, and other electronic communications of millions of Americans.
PBS broadcast a two-part documentary in 2014  that describes how a surveillance operation turned from foreign targets into a domestic dragnet of U.S. persons, as well as the secret relationship between the National Security Agency (NSA) and hi-tech companies.
Many of these secret programs were not known to the public until they were revealed by Edward Snowden , a contractor to the U.S. government, in 2013.
A disturbing aspect of Snowden’s disclosure is known as Section 702 of the FISA Amendment Act of 2008 , which NSA uses to justify collection of massive amounts of electronic data directly from the Internet service providers. Although the law is intended to target only non-U.S. persons outside the U.S., NSA also uses it to justify the collection of “incidental” communications of U.S. persons and accesses such information without a warrant through “backdoor loopholes,”  among other questionable practices [e.g., 23].
Following the massive leaks of diplomatic cables  in 2010 but prior to the Snowden disclosures in 2013, President Barack Obama issued Executive Order 13587  in 2011 to “improve the security of classified networks.” It was followed by the government-wide National Insider Threat Policy  in 2012, with the goal of fully implementing a National Insider Threat Program by the end of 2016.
Relevance to U.S. Persons of Chinese Origin
Every U.S. person, especially those of Chinese origin, should be aware and concerned about these developments affecting our constitutional rights and national security.
FISA was amended in 2008 and reauthorized for five years in 2012 (expiring December 31, 2017). The focus of U.S. surveillance expanded from Al-Qaeda and terrorist groups to national security in general.
The Department of Justice (DOJ) and the Federal Bureau of Investigations (FBI) began publicity campaigns identifying economic espionage as the second highest national security threat to the U.S. after terrorism with China as primary culprit. FBI  reported that China was responsible for a 53% jump in its economic espionage investigations in 2015, which numbered in the hundreds.
Within a short period of about two years, at least four naturalized Chinese American scientists including Professor Xi, were indicted, arrested, and accused of being economic spies for China, only to have their separate cases dropped by the government without explanation. However, substantial damages have already been inflicted on these innocent individuals and their families.
Despite numerous inquiries and petitions from Congress, the U.S. Civil Rights Commission, media, community and professional organizations, and concerned individuals in the past two years, DOJ has refused to conduct an independent investigation or provide a full explanation or an apology to the apparent pattern of wrongful prosecutions against these Chinese American scientists.
Based on empirical evidence from 136 cases involving 187 individual defendants charged under the Economic Espionage Act (EEA) from 1997 to 2015, a recent white paper [28, 29] released by the Committee of 100 found that:
The percentage of person of Chinese heritage charged under EEA tripled since 2009
In about half of the cases, the alleged beneficiary of espionage was an American entity while about a third of the cases involved a Chinese beneficiary
Defendants of Asian heritage convicted of espionage received sentences over twice as severe as those of other ethnicities
As many as 1 in 5 Asian people prosecuted as spies may be innocent, a rate twice as large as for other races
In his 21-page complaint  against the lead FBI agent and other unnamed agents, Professor Xi made five counts of violation of his Fourth and Fifth Amendment rights:
Equal Protection and Due Process Violation
Unlawful Search and Seizure – FISA Orders
Unlawful Search and Seizure – Warrantless Surveillance
Unlawful Search and Seizure of Property and Belongings.
Additional FBI agents may be named later in the suit. According to media report , it is also likely that claims under the Federal Tort Claims Act  will also be brought against the government.
Within the legal circle, Professor Xi’s case is known as a “Bivens action” , which generally refers to “actions for damages when there has been a violation of the U.S. Constitution by federal officers” acting under invalid federal authority. In particular, the Supreme Court held in 1972 that “violation of one’s Fourth Amendment rights by federal officers can give rise to a federal cause of action for damages for unlawful searches and seizures.”
Concerns about Fourth Amendment rights are broad-based, especially as society is undergoing rapid changes with the advancement of modern technology [e.g., 33, 34].
A bipartisan Congressional Fourth Amendment Caucus , chaired by Congresspersons Ted Poe (R-Texas) and Zoe Lofgren (D-California), was launched in July 2016 to protect the privacy and security of Americans in the digital age.
The Fourth Amendment Advisory Committee, composed of a diverse and bipartisan alliance of civil liberty experts, was formed to support the work of the Congressional Fourth Amendment Caucus. It has already organized a series of panels on Capitol Hill to educate congressional staffers, engage the public, and discuss how to protect our rights to privacy. Professor Xi was the featured speaker in the “The Usual Suspects: Bias in Government Surveillance” panel  on December 1, 2016.
Among the specific actions the Fourth Amendment Caucus will undertake in 2017 is the reauthorization of the FISA Amendment Act, especially Section 702, which is scheduled to expire on December 31. While politics and the need for national security may not allow the law to lapse, additional transparency and accountability should certainly be demanded in its reauthorization.
There are now mounting reports that Chinese Americans are being targeted in the National Insider Threat Program [e.g., 37]. Federal agencies such as the Department of Homeland Security and the FBI have already started the rulemaking process to exempt themselves from the Privacy Act [e.g., 38], such as denying individuals who are under investigation the chance to access and review their own files. These secret practices, if implemented, will bypass individual constitutional rights and increase the likelihood of wrongful accusations against innocent individuals without recourse.
How We Can Help Professor Xi and Ourselves
The United States was founded on a Constitution of core principles and rule of law. It has not been a perfect nation, but it has improved itself over time because of the wisdom and participation of its people, including Asian Americans.
Asian Americans have faced a long history of explicit prejudice in exclusion laws and internment. It is unacceptable to scapegoat and stereotype Asian Americans, or any American for that matter, through malicious treatment, implicit bias , or gross negligence in the conduct and behavior of government actions. And yet, targeting and profiling continue to ruin lives and violate our constitutional rights.
The U.S. government and the American justice system are obligated not only to punish the guilty, but also to protect the innocent.
Professor Xi and his family, as well as Sherry Chen and other innocent individuals subjected to wrongful prosecutions and investigations, are the latest victims to suffer the long ordeals of injustice in the guise of national security.
To many, Professor Xi’s suit symbolizes a ground-breaking step to regain our constitutional rights instead of just reacting defensively to false accusations. Innocent, law-abiding Americans should be able to talk on the phone, send an email, participate in scientific exchange, and conduct normal social and professional activities without being constantly surveilled by the government and fearful of persecution as in a police state.
In this regard, we can help Professor Xi and ourselves in at least four ways:
Educate ourselves and the community about the issues and publicize broadly our support for Professor Xi
Donate to Professor Xi’s legal defense fund at http://www.xiaoxingxi.org/
Engage your elected representatives and participate in the process to support legislative changes and our rights by enhancing transparency and accountability, such as in the upcoming reauthorization of the FISA Amendment Act
File amicus briefs  in court to support Professor Xi when they are appropriate
 Mintpress News (2017). Xiaoxing Xi vs FBI Special Agent Andrew Haugen and John Doe(s). U.S. District Court for the Eastern District of Pennsylvania Case 2:17-cv-02132-RBS. http://bit.ly/2r54Xx6.
 Apuzzo, Matt (2017). Former Espionage Suspect Sues, Accusing F.B.I. of Falsifying Evidence. New York Times. http://nyti.ms/2qSOtrV.
 Roebuck, Jeremy (2017). Temple professor, once accused of spying for China, sues FBI agents. Philly.com. http://bit.ly/2pAv4rC.
 Legal Information Institute (n.d.). 22 U.S. Code § 6010 – “United States person” defined. http://bit.ly/2r99jAs.
 Legal Information Institute (n.d.). Fourth Amendment. Cornell University Law School. http://bit.ly/2qbMTyB.
 Legal Information Institute (n.d.). Fifth Amendment. Cornell University Law School. http://bit.ly/2qh8jMO.
 Legal Information Institute (n.d.). Supreme Court Decision: Katz v. United States, 389 U.S. 347. Cornell University Law School. http://bit.ly/2prv01C.
 Wikipedia (n.d.). Privacy Act of 1974. http://bit.ly/2gfSrqx.
 Wikipedia (n.d.). Mass surveillance in the United States. http://bit.ly/2r3tKl2.
 Wikipedia (n.d.). Espionage Act of 1917. http://bit.ly/2r10YSi.
 Wikipedia (n.d.). Church Committee. http://bit.ly/2r3lVvQ.
 Ambinder, Marc (2010). Minimization: A Term You Need To Know. The Atlantic Magazine. http://theatln.tc/2rcfweR.
 Wikipedia (n.d.). Foreign Intelligence Surveillance Act. http://bit.ly/2r7i79c.
 National Archives (n.d.). Executive Order 12333 – United States Intelligence Activities. http://bit.ly/2qasxYc.
 Wikipedia (n.d.). Executive Order 12333. http://bit.ly/2pFiTsM.
 Simon, Spencer (1998). The Economic Espionage Act of 1996, 13 Berkeley Tech. L.J. 305. http://bit.ly/2pFdxxP.
 Wikipedia (n.d.). Economic Espionage Act of 1996. http://bit.ly/1GIja65.
 Wikipedia (n.d.). Patriot Act. http://bit.ly/2q92NM3.
 Public Broadcasting Service (2014). United States of Secrets, two-part documentary. http://to.pbs.org/2pG8BcS.
 Wikipedia (n.d.). Edward Snowden. http://bit.ly/2qA3IWQ.
 Wikipedia (n.d.). Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008. http://bit.ly/1NvPEUw.
 The Guardian (2014). NSA loophole allows warrantless search for US citizens’ emails and phone calls. http://bit.ly/2pvtfQT.
 Kayyali, Dia (2014). The Way the NSA Uses Section 702 is Deeply Troubling. Here’s Why. Electronic Frontier Foundation. http://bit.ly/2qdGWRt.
 Wikipedia (n.d.). United States diplomatic cables leak. http://bit.ly/2qb4tEF.
 The White House (2011). Executive Order 13587 – Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information. http://bit.ly/2qBtycV.
 The White House (2012). Presidential Memorandum — National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs. http://bit.ly/2qdM3CU.
 Chon, Gina (2015). FBI blames China for 53% spy case surge. Financial Times. http://on.ft.com/2qdFJvo.
 Kim, Andrew (2017). Prosecuting Chinese “Spies:” An Empirical Analysis of the Economic Espionage Act. Committee of 100. http://bit.ly/2qXKHNf.
 Wu, Jeremy (n.d.). Federal Cases Under or Related to the Economic Espionage Act. http://bit.ly/FedCases.
 Fuchs, Chris (2017). Scientist Formerly Accused of Spying Sues Alleging FBI Agent Falsified Evidence. NBC News. http://nbcnews.to/2qj2Oet.
 Wikipedia (n.d.). Federal Tort Claims Act. http://bit.ly/2qfjPbe.
 Legal Information Institute (n.d.). Bivens Actions. Cornell University Law School. http://bit.ly/2rfhMlQ.
 Pasquale, Frank (2015). The Black Box Society – The Secret Algorithms That Control Money and Information. ISBN 978-0-674-3827-9. Harvard University Press.
 Wu, Jeremy (2016). The Dark Side of Big Data and Predictive Analytics? http://bit.ly/2qHeLOb.
 Fourth Amendment Caucus (n.d.). 4th Amendment Caucus Launched. http://bit.ly/2qjfC4x.
 Fourth Amendment Advisory Committee (n.d.). News and Events. http://bit.ly/2pL07RA.
 Fox News (2016). Attorney: FBI singling out Chinese-Americans with insider-threat program. http://fxn.ws/2hRxvW2.
 Wu, Jeremy (2016). ALERT: Reject the DHS Proposal. http://bit.ly/2qj2SwR.
 Wu, Jeremy (2016). Concerns of Implicit Bias against Asian Americans. http://bit.ly/2pyjnGa.
 Wikipedia (n.d.). Amicus curiae. http://bit.ly/2qjLxlh.