- Associated Press - Wednesday, February 4, 2015

DES MOINES, Iowa (AP) - Lawyers for two employees of a Chinese biotechnology company accused of stealing patented seed corn from companies in the United States are fighting the government’s use of laws established to fight terrorism and espionage to gather evidence against them.

In building the case against Mo Hailong, his sister Mo Yun, and five others, FBI agents used the Foreign Intelligence Surveillance Act to secretly place GPS monitors and audio recording devices in rental cars, tap cellphones, and place cameras on utility poles, court documents say. Agents also swept up thousands of documents through electronic surveillance that include pictures, emails and instant messages.

Mo Hailong’s attorney, Mark Weinhardt, filed a motion Wednesday asking a judge to force the government to disclose covert surveillance techniques used against him that resulted in evidence to be used at trial, and to identify that evidence.

“The government has the requested information readily available, but refuses to provide it,” Weinhardt wrote.

The seven employees of Beijing-based DBN Group are charged in federal court in Des Moines with conspiracy to steal trade secrets. They are accused of taking patented seed corn from fields in Iowa and Illinois and planned to ship it to China to try to reproduce its traits. The government says the intellectual property is worth an estimated $500 million.

Mo Hailong, a naturalized U.S. citizen living in Florida before his arrest, is accused of traveling to the Midwest to work with other employees of the company to take corn seed. He was arrested in December 2013.

Mo Yun is accused of helping to coordinate the conspiracy from Beijing. She was arrested in July 2014 at Los Angeles International Airport while waiting for a return flight to China. She had come to the U.S. for a Disneyland vacation with her two children.

She is married to DNB Group chairman Shao Genhou, whose net worth is estimated at $1.4 billion. Shao has not been implicated in the case.

Mo Yun and her brother have pleaded not guilty and are free on bond in Des Moines, though Mo Hailong is under strict security and Mo Yun must wear a GPS monitor. They are scheduled to be tried together on Sept. 14. Authorities believe the five others indicted may have returned to China, which shares no extradition agreement with the U.S.

Mo Yun’s attorney Terry Bird did not return messages seeking comment.

The FISA laws at issue were developed in the 1980s but expanded after the Sept. 11 terrorist attacks and give the government broad authority to conduct electronic surveillance, perform “sneak and peak” searches under certain circumstances and obtain detailed call records from phone companies.

The National Security Agency also may listen in to international telephone calls under executive orders signed by President Ronald Reagan and amended by President George W. Bush.

While the government frequently uses FISA to investigate cases of suspected spying and terrorism, the practice of using information gathered through these means for other types of criminal investigations is legally murky and increasingly the subject of court challenges.

“The main issue in these cases is that there are supposed to be clear limits,” said Alan Butler, senior counsel for the Electronic Privacy Information Center, a Washington-based nonprofit. “FISA was originally intended and still should be applied in such a way that there are limits on what the government can collect and how it can use the information it does collect in a foreign intelligence investigation.”

In his motion Wednesday, Weinhardt wrote that Mo Hailong “only asks to be told what information the government seeks to use at trial that was obtained through FISA or other allegedly secret procedures so that he may intelligently litigate motions to suppress and discovery matters regarding those items.”

Assistant U.S. Attorney Jason Griess acknowledged in court documents filed Jan. 16, “the difficulties faced by defense counsel in this case,” but said he is following federal law by not revealing details of the FISA evidence.

A spokesman for the prosecutor’s office said government attorneys would not comment.

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