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The Dangers of "Downloading While Asian" 

Wednesday, Nov 25 2015
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In the early morning of May 21, Xiaoxing Xi, his wife, and their two daughters were awakened when a dozen FBI agents stormed their house in Penn Valley, Pa., a suburb 10 miles north of Philadelphia. The agents, dressed in SWAT gear with guns drawn, arrested Xi as his wife and daughters looked on.

Federal prosecutors accused Xi, a naturalized U.S. citizen and chair of Temple University's physics department, of being a spy. They claimed he'd shared secret information about the pocket heater, a superconductor technology, with colleagues in his native China. As a result, Temple revoked Xi's chairmanship and placed him on administrative leave.

But the pocket heater wasn't secret. In fact, it wasn't even a pocket heater that he'd shared information about, according to the experts — including the co-inventor of the pocket heater — who submitted affidavits on Xi's behalf.

Xi's case was dismissed in September. The Justice Department was vague in its decision, stating only that "additional information came to the attention of the government."

In a statement on his legal defense website, Xi wrote: "I am innocent. I have done nothing more than common academic collaborations practiced by so many colleagues every day."

That sentiment is gaining political support. Last month, a letter written by Rep. Ted Lieu (D-Torrance) and signed by 42 members of Congress suggested that Xi's ordeal may indicate a broader pattern of racial profiling against Asian Americans — particularly Asian American scientists.

The letter urged Attorney General Loretta Lynch to order a Department of Justice investigation "into whether race, ethnicity, or national origin played a part in recent cases in which Asian Americans have been wrongfully arrested and indicted for alleged espionage only to have those charges later dropped."

In the Bay Area, a movement to curb such racial profiling and rampant cyber war panic is brewing. Last month, several local Asian American civil rights groups convened at Stanford, UC Berkeley, and UC Hastings to delve into the issue.

"It's something that we as a civil rights community need to address," said Victor Hwang, an attorney who spoke at the UC Hastings event. "We need to identify the scope of the problem. How many [Asian American scientists] have been confronted by the FBI?"

Xi and Chen

That's a hard question to answer. But Xi's case is strikingly similar to that of Sherry Chen, a Chinese American hydrologist in Wilmington, Ohio.

Chen was arrested in October 2014 after she she emailed an old classmate in China who'd asked about water infrastructure funding in the U.S. Chen sent him a link to the publicly available sections of the National Inventory of Dams Database, along with contact information for her colleague Deborah H. Lee.

Lee, who is white, told Chen she'd be happy to answer questions from the former classmate, but, instead, she reported Chen to security staff at the Department of Commerce.

The FBI soon arrived at Chen's office. She was arrested, indicted, and ultimately suspended from her job without pay. Federal prosecutors accused her of accessing the National Inventory of Dams database using a stolen password. In fact, her co-worker, who managed passwords for the office, had given it to her — as he had to everyone else who needed it.

Peter Zeidenberg, a former federal prosecutor who represented both Xi and Chen, said that the disparate treatment of Chen and her co-workers indicates racial profiling.

"She was indicted and is still facing consequences for using this password," Zeidenberg said. "Meanwhile, the white male who gave it to her received no reprimand and is now up for promotion."

Chen's case was dismissed in March, but she's still fighting to get her job back.

"It's very rare for the government to indict a case and then dismiss it prior to trial," Zeidenberg said. "Prosecutors moved ahead too quickly, and without doing enough investigation. I think they're feeling under siege by China. And I think they're under pressure to take action."

Fear of China

Fear of Chinese hackers may be behind this pressure. In July, NBC obtained a secret NSA map marked with almost 700 U.S. targets of Chinese hacking. On Sept. 25, China's President Xi Jinping signed an agreement with President Obama that their respective countries wouldn't steal corporate data from each other for economic benefit. Then, on Oct. 19, the cybersecurity firm Crowdstrike published a blog post saying that since the bilateral agreement was finalized, the firm had detected several cyber attacks on U.S. companies from what appeared to be the Chinese government.

Zeidenberg thinks the Department of Justice is pressuring federal law enforcement to find and convict spies — and innocent Asian Americans are being caught in the net.

"I think it's increased recently because of all the publicity and attention on the hacking that's been going on with China," Zeidenberg said.

The pattern may have increased recently, but the stereotypes underlying it have a long history in the U.S., argues UC Berkeley law professor Leti Volpp.

"Asians, and in particular the Chinese, were structured as aliens to be excluded," she said, adding that people should be skeptical of embracing the "model minority" stereotype.

"We've seen people being profiled for downloading data while Asian. Now people are being profiled for emailing while Chinese," Volpp said.

Wen Ho Lee

"Downloading data while Asian" sums up the case of Wen Ho Lee. In 1999, Lee, a Taiwanese American scientist at Los Alamos National Laboratory, was arrested and charged with 59 counts related to espionage, several of which carried life sentences. He had allegedly downloaded large amounts of secret weapons information in order to share it with China.

Lee was held in solitary confinement for nine months at the Santa Fe County Detention Facility in New Mexico. When he was released, a judge in the case denounced his detention as a federal abuse of power.

Lee's defenders galvanized activist support, much of it based in San Francisco. The Coalition Against Racial and Ethnic Scapegoating was founded here to defend Lee, as well as to tackle broader issues of racial profiling nationally. Leading the coalition was Michelle Alexander, who would later write the groundbreaking New Jim Crow: Mass Incarceration in the Age of Colorblindess, as well as future state Assemblyman Phil Ting (D-San Francisco).

The CARES coalition held a national day of action to free Lee, with coordinated protests in two dozen cities.

Hwang, who works with Asian Pacific Islander Legal Outreach, said that similar activism is needed in cases like Xi's and Chen's. He and other local Asian American civil rights advocates held an initial meeting on the day of the UC Hastings event.

Rep. Lieu's letter is a good first step, Hwang says, but he wants to see more grassroots work.

"Maybe people will start to stand up and say, 'Yeah, me too, this did happen to me. The FBI did come to my home.'"

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Yael Chanoff

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