Why the FBI Invoked Anti-Spying Powers to Protect Corn Seeds

Genetically modified crops are no stranger to controversy: GM seed giants such as Monsanto and DuPont are constantly in the news for suing farmers for patent infringement, for defeatig ballot measures that seek to create mandatory labeling of GM products, and for the crops' potential to harm the health of honey bees and humans alike. In spite of the complex web of issues surrounding GM crops—and the general public's overall mistrust of modified foods—it's often been alleged that the US government and GM giants maintain a too-close relationship, with the legislature consistently passing pro-GMO initiatives. And a recent case out of the Midwest demonstrates the government's continued interest in protecting the technology of GM seeds, with the FBI invoking the powers of the anti-spy Foreign Intelligence Surveillance Act to gather evidence against a pair of Chinese siblings accused of stealing patented seeds from Iowa cornfields.

According to a recent Des Moines Register article, the FBI has launched a criminal investigation into the actions of brother and sister Mo Hailong and Mo Yun. The agency says the Chinese citizens attempted to steal trade secrets in the form of GM corn seeds manufactured by Monsanto, DuPont Pioneer, and AgReliant. Investigators allege that the siblings worked for DBN Group, a Beijing-based technology company whose subsidiary, Kings Nower Seed, develops GM crops. In 2011, a DuPont Pioneer field manager allegedly found Hailong digging in one of the company's Iowa test fields; the FBI later launched an investigation into the siblings, believing they planned to smuggle illegally obtained corn seeds back to China to be analyzed and possibly reproduced by DBN Group.

What's unusual about the case is the way in which prosecutors have gathered evidence against the Mos. While the siblings' defense attorneys claim that the case is nothing more than a fairly routine trade secret dispute, the FBI has treated the alleged theft as an issue of national security, using FISA laws to bypass traditional search warrants and to bug the Mos' vehicles and phone lines. According to court records referenced in the Des Moines Register article, prosecutors have amassed more than 500,000 documents, 50 hours of audio tapes, and two years' worth of surveillance footage as evidence to be used against the pair, whose trial will take place in the fall.

But Hailong's defense attorney, Mark Weinhardt, is attempting to suppress the use of such evidence on the grounds that its collection violates his client's Fourth Amendment rights. He pointed me towards a 67-page brief he submitted to the US District Court in Iowa's southern district. The brief argues that the government hasn't adequately proven that seeds can be considered trade secrets, and that its use of FISA tactics constitutes a troubling threat to civil liberties.

"This case involves a breathtaking and unprecedented expansion of the government's use of the Foreign Intelligence Surveillance Act," the brief reads. "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." (At press time, the local branch of the FBI had not responded to inquiries for comment on the case.)

FISA was first passed in Congress in 1978 to establish rules for government surveillance in the wake of spying scandals such as Watergate, and is typically used to gather evidence against groups or individuals accused of espionage or terrorism. For FISA-sanctioned evidence-collecting to be used, the alleged criminal has to be an "agent of a foreign power." In the case of the Mos, the FBI has argued that DBN Group has ties to the Chinese government and that as such, Hailong could have been acting as a spy. But Weinhardt, his attorney, says in the brief that the company is privately owned, and that Hailong is a businessman, not a secret agent.

According to Weinhardt, the case is yet another example of lawsuit-happy seed corporations trying to protect their vast annual profits.

"The alleged 'victims' in this case are three leading producers of corn seed in the United States," the brief reads. "The corn seed business in the United States is extremely lucrative, highly competitive, and remarkably litigious."

"Seed companies … regularly allege violations of intellectual property rights, sometimes founded and sometimes not, as a tactical maneuver to protect or expand their market share," the brief continues. "Allegations of intellectual property theft are simply business as usual in the industry. The market in which these companies operate is extremely lucrative, and the market leaders, including the alleged victims in this case, fiercely defend their share of that lucrative market and vigorously compete to expand their market shares, through means both fair and foul."

The Mos' trial is scheduled for September 14. If convicted, the pair could face up to ten years in prison.