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Paust – Chinese ‘cyber espionage’

Jordan Paust
Jordan Paust

The Department of Justice Monday announced it has charged five Chinese military officials with cyber theft, alleging they hacked into U.S. companies and a union to gain trade secrets and access to confidential communications. In a Washington press conference, senior justice department officials said China should send the five defendants to the U.S. for prosecution. The demand is considered symbolic as Chinese officials have denied stealing trade secrets or engaging in cyber theft. The indictment, a rare instance of the U.S. charging foreign government employers with economic espionage, was returned in Pittsburgh where most of the companies are based. The alleged targets are Alcoa World Alumina, Westinghouse Electric Co., Allegheny Technologies, U.S. Steel Corp., the United Steelworkers Union, and SolarWorld. China’s Foreign Ministry website claims that the U.S. indictment “severely violates basic norms of international relations,” but this is apparently untrue, according to Jordan Paust, an international law expert and Mike and Teresa Baker Law Center Professor at the University of Houston Law Center. Paust examined point by point whether the indictment violates the principles of international law:

(1) Under international law, the United States has jurisdiction to indict the accused and to extend the reach of its domestic criminal laws to conduct that was allegedly initiated abroad but that was intended to have and had consequences within the United States.  The well-known competence under international law is known as objective territorial jurisdiction (a type of competence that we have used, for example, with respect to international drug traffickers like Panama’s Noriega).

(2) Under international law, we cannot enforce our laws in China without consent from the highest level of China’s government.  We will enforce our laws within the U.S. if the accused are found in the U.S., for example, if they come here as tourists or are extradited to the U.S. to be tried.  China might refuse a U.S. request for extradition on the basis of the political offense exception to extradition in view of the obvious public or political purpose of the alleged hacking even though there is also a purpose to engage in thievery for commercial purposes.  However, China would be admitting that the hacking was for a political purpose.

(3) If the accused are found within the U.S. and are being tried, the accused might raise an “act of state” doctrine type of claim for immunity.  There are two elements that must be met for proper application of the doctrine: (1) the conduct must be “public” or “official,” which is likely in this case, and (2) the conduct would have to have been completed within China, which is not the case.  According to the U.S. government, there was an intent to produce effects within the United States and there were obvious effects within the United States.  Conduct occurred by fiction within the U.S. under the continuing act fiction as well as the innocent agent rationale.  By using the internet, they placed in motion a “force” that continued into the U.S. rather like firing a bullet from outside our border with an intent to produce an injurious effect within the U.S. and which had that effect.  Therefore, the continuing act fiction is met and, by fiction, the conduct of the accused continued within the U.S.  Also, by using the Internet there were innocent agents, by fiction, within the U.S. whose conduct in connection with maintenance and the functioning of the Internet within the U.S. allowed the effectuation of the transmittals for hacking, the actual hacking, and so forth.  Therefore, the innocent agent rationale is met and the acts of the innocent agents are attributable to the accused just as if they had engaged in conduct within the United States.