On May 19, the Obama administration announced indictments of five Chinese military officers for cyber-espionage (0) against US companies. The named individuals work for Unit 61398 of the Chinese People’s Liberation Army (PLA), a cyber-espionage organization. The problem of Chinese hacking of U.S. companies is real, but these indictments are an unwise step. They are unlikely to achieve any positive result and could well have significant negative consequences for the United States.
Indicting PLA officers is a purely symbolic move. Normally, the purpose of indictment is to prepare for prosecution. In this case, prosecution is unlikely. The indicted individuals are unlikely to travel anywhere that will put them at risk of actual arrest. These indictments are a diplomatic or political gesture, not a serious tool of law enforcement.
As a diplomatic signal, these indictments are meant to “send a message.” But indictments are not an effective mechanism for sending diplomatic messages. There is a standard set of ways countries signal displeasure. The Secretary of State could summon China’s ambassador and read a statement. We could suspend bilateral cooperation in various domains. More seriously, we could expel their ambassador. Indicting individual low-level foreign government officials is not a standard means of diplomatic signaling, which is to say that whatever message we intend to send is not likely to be clearly understood.
To the extent the indictments are meant to go beyond signaling displeasure, they are again a poor way to proceed: the indictments impose no inconvenience or harm to the actual decision-makers in the Chinese government. At worst, the named individuals will have to stay in China, or travel under assumed names. Criminal prosecutions of this sort might annoy the Chinese government, but are unlikely to deter it.
The Obama administration might be indulged for well-meaning but ineffectual diplomacy, if that was all that was at stake. But indicting PLA officers for cyber-espionage is not merely pointless, it is dangerous. The precedent we have set here is that uniformed military personnel can be indicted by foreign powers for activity conducted lawfully in their home country. The NSA analyzes large volumes of foreign telecommunications traffic — we almost certainly have wiretapped millions of Chinese citizens. Any hostile government, or impish prosecutor, would be able to use our actions here as justification for indicting NSA employees and contractors, or other Americans who work for our intelligence services. As a result, these indictments have the potential to impose more costs on us than on China.
The precedent here is broader than just prosecution of government agents conducting cyberespionage. There is a general question of when we believe our law applies to conduct of foreigners in their own countries. Clearly there are cases where we would feel justified in prosecuting foreigners, and likewise in having our citizens prosecuted for legal conduct in America; counterfeiting has long been held to be in this category. There are also cases where extraterritorial prosecution would be improper. We would be indignant if the Turkish government prosecuted an American for defaming Atatürk on the Internet, or if France prosecuted American search engines for violating the new European “right to be forgotten.” There is currently no clear standard that separates these cases.
The Internet makes it much easier for conduct in one country to have effects in another, and so this question of extraterritorial jurisdiction becomes much more urgent. We currently have no clear theory or doctrine for just how far national jurisdiction can be pushed. By indicting Chinese military officers for espionage conducted in China, we are clearly broadening previous notions of jurisdiction. It is new and surprising to hold foreign government officials, acting in their official capacity in their own country, responsible for complying with our laws. Just how far does that precedent stretch? Has anybody in the Obama administration thought this through?
National courts are sometimes used as tools of foreign policy. The term “lawfare” has been coined to describe the process of manipulating international legal standards for strategic ends The Obama administration is in effect trying something of the sort here, normalizing new and aggressive cross-border prosecutions. However, these indictments are a dangerously slapdash sort of lawfare. We have introduced and thereby legitimated a new tactic in our conflict with China. There is no evidence that we have considered the implications. Our government has expressed no guiding principles for when and how this tactic might be used in the future, either by us or by our adversaries.
Lawfare, like other sorts of conflict, requires strategy. There is no evidence that we have one here. Before using indictments as a diplomatic tool, we should have worked out a coherent and reasonably well-accepted legal doctrine that would provide maximum shelter to our citizens and minimum advantage to our adversaries. We should have ensured that diplomatically-instigated legal wrangles work to our benefit instead of our harm. Instead, this seems like a stunt for domestic political purposes that is likely to redound to the detriment of the United States.