Espionage

• Author: International Law Group
• Pages: 227-228

Page 227

Ning Wen, a naturalized U.S. citizen born in China, his wife and other associates allegedly operated a profitable business selling computer chips and circuit boards to China. The sale of such products is legal in the U.S., but export to China would require a license. Wen and his associatesPage 228 allegedly falsified shipping documents to circumvent the licensing requirements. The technology at issue purportedly served the Chinese military to develop weapons and missiles, as well as radar and communication devices. Interestingly, Wen also seems to have been an FBI informant since 1989 when he worked at the Chinese Consulate in Los Angeles.

Wen was charged with violating export control laws by allegedly providing militarily useful technology to the People's Republic of China without the necessary licenses. See 50 U.S.C. Section 1705(b).

Wen was found guilty and he appealed, claiming that the district court should have suppressed wiretap evidence. The wiretap at issue had been installed pursuant to the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. Section 1801. The district court reviewed the wiretap evidence in camera, considered it justifi ed, and denied Wen's motion to suppress.

The U.S. Court of Appeals for the Seventh Circuit affirms.

FISA applies to interceptions for the purpose of foreign intelligence. It was amended in 2001 by the USA PATRIOT Act, making it applicable to interceptions that have international intelligence as a "significant purpose." 50 U.S.C. Section 1804(a)(7)(B). The Foreign Intelligence Surveillance Court of Review has interpreted the statute to permit domestic use of intercepted evidence as long as there is a "significant" international objective. See Sealed Case, 310 F.3d 717 (F.I.S.Ct. Rev. 2002).

Wen argues that evidence gathered pursuant to FISA cannot be used for domestic criminal investigations or prosecutions once the international investigation has "fi zzled out."

"The principal problem with Wen's argument is that the exclusionary rule is used to enforce the Constitution, not statutes or regulations. ... So unless there is a constitutional problem in domestic use of evidence seized as part of an international investigation, there...