Commercial Cyberespionage, U.S. Foreign Policy, Criminal Prosecutions — What Next for U.S. – China Trade Relations?

Froman and Obama (FT 2013)
     China cyberespionage for commercial gain has taken front-and-center in U.S. trade policy. It raises issues of national security, trade policy, criminal prosecutions, WTO litigation, commercial competitiveness, U.S. foreign policy, among a host of other related ones. A recent WTO trade case brought by the U.S. against China further highlights the U.S. – China tensions this week. Here is some additional information.


…. To what extent are recent indictments by USDOJ an attempt to deflect criticism of U.S. cyber actions against China? To what extent will U.S. forms face blowback in China? American Businesses in China Feel Heat of Cyber Disputes.” New York Times (May 31, 2014).
….. Obama’s foreign policy has shown to be more realistic and national-interest oriented. Less moralistic. “Obama’s Foreign Policy.” Financial Times (May 26, 2014).
….. The new Obama policy concerning commercial cyber espionage involves both diplomacy and criminal prosecution. I would suggest two additional global actions: filing a trade case against China in the WTO addressing commercial cyber espionage and calling an international conference to draft a convention on cyber espionage generally. These are realistic moves that can be taken quickly. Their success would test U.S. diplomacy. “Indictment of Chinese Hackers Part of Broad U.S. Strategy.” Washington Post (May 23, 2014).
….. Another split decision in a new U.S. – China WTO case just decided. Concerns China’s antidumping and countervailing duties on various U.S. auto imports into China.  Somewhat expected and in line with prior cases. “WTO Issues Panel Report on Imports of Autos into China.”  WTO News (May 23, 2014).
….  So China intrudes into the computer systems of U.S. firms and the U.S. intrudes into those of China. Why exactly does it matter what the intent is? Does it matter if it’s “economic espionage”  or “commercial espionage”? Global rules need to be developed to regulate such actions. That would be in the national interest of both states. Let’s start with real diplomatic negotiations between China and the U.S. Sounds like the wild west right now. “Espionage Indictments Against China.” New York Times (May 21,2014).
….. Blurred Lines — Spying for national security or corporate competitiveness? National economic advantage or firm advantage? Spying on trade negotiations, foreign economic and corporate officials. How really different is NSA and Chinese cyberespionage? What are the legal rules? What’s the best public policy? How do we get some sort of international understanding and global governance concerning commercial cyber espionage? “Fine Line on U.S. Spying on Companies.” New York Times (May 20, 2014).






About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (Schar School of Public Policy).
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