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Wednesday, June 4, 2014

The Corliss Group Latest Tech Review: US cyberspying case against Chinese military officials is all talk, no action

Two weeks after the Obama administration announced a groundbreaking criminal case, accusing five Chinese military officers of hacking into US companies to steal trade secrets, the accused have yet to be placed on Interpol's public listing of international fugitives.

What's more, there is no evidence that China would entertain a formal US request to extradite them.

Short of the five men flying to the US for a vacation, for example, there's no practical way they could be arrested outside China without help from foreign governments. It's also unclear whether the charges levied by the US are accepted internationally as crimes. No country so far has publicly expressed support for the groundbreaking charges.

The Obama administration described the unusual indictment on May 19 as a wake-up call for China to stop stealing US trade secrets. The FBI published "wanted" posters with pictures of all five Chinese military officers. Attorney General Eric Holder said such hacking suspects "will be exposed for their criminal conduct and sought for apprehension and prosecution in an American court of law".

Now, weeks later, that's looking less likely than ever, illustrating the complex legal and diplomatic issues posed by the indictment. There may be no viable options for Holder to make good on his word.

"The next step needs to be [we], here in the US, saying this is not just a US-China issue," said Shawn Henry, former cyber director at the FBI and now president of CrowdStrike Services, a security technology company. "This is a China-versus-the-world issue."

So far, the US does not appear to have the world on its side.

Neither officials in China nor the US said they would comment on any efforts by American prosecutors to arrest the Chinese military officers. The White House and State Department directed inquiries to the Justice Department, where spokesman Marc Raimondi said: "Our investigation is active, and we are not going to comment on specific actions to locate the individuals charged in the indictment."

A federal grand jury charged the five Chinese military officials with hacking into five US nuclear and technology companies' computer systems and a major steel workers union's system, conducting economic espionage and stealing confidential business information, sensitive trade secrets and internal communications for competitive advantage.

The US and China have no extradition treaty. And China's laws preclude extraditing citizens to countries where there's no treaty.

China has denied the hacking allegations and wants the US to revoke the indictment. A defence ministry spokesman, Geng Yansheng, said last week that the case ran counter to China-US military cooperation and had damaged mutual trust. Citing the suspension of dialogue on computer security, Geng said further responses from China would depend on Washington's attitude and actions.

"The Chinese are obviously not going to extradite their officials to the US," said John Bellinger, former State Department legal adviser. For this reason, Bellinger said he did not expect the US to make the request. "To ask them to do something that they're obviously going to then deny makes [the US] look ineffectual," he said.

The US can ask Interpol, the international criminal police organization, to place defendants on its "red notice" list of wanted fugitives, which would alert the 190 member countries if the men were to travel outside of China. But the five officers were not on Interpol's public list as recently as yesterday, although there were 24 other Chinese citizens on that list wanted by the US on charges that included fraud, sexual assault, arson and smuggling.

Raimondi, the Justice Department spokesman, would not say whether the US had asked Interpol to assign red notices to the men. Interpol does not allow red notices in cases it considers political in nature, but spokeswoman Rachael Billington declined to say whether Interpol considered economic espionage to be political.

"Whilst we could not comment on a hypothetical situation, requests for red notices are considered on a case by case basis to ensure that they comply with Interpol's rules on the processing of data," Billington said.

A former Interpol official said especially sensitive international cases were far more complex.

"In this kind of case, where it has a lot of attention around the world and involves superpowers, it's going to be more under a microscope about what they have," said Timothy Williams, former director of Interpol's national central bureau in Washington, and now general manager of G4S Secure Solutions, a security consulting company.

Interpol sometimes circulates secret red notices, such as cases involving sealed indictments or arrest warrants. But listing the five Chinese men secretly on Interpol's list would not be effective in this case, since China is a member of Interpol and would see that the US wants them detained if they were to travel outside China.

The Chinese defendants could argue they are immune from prosecution in the US under international law. Such claims were so often contested that the issue was under review by a United Nations commission, said Tim Meyer, a law professor at the University of Georgia in the United States. He expected the case of the Chinese to come up during the UN discussions.

"To be clear, this conduct is criminal," said John Carlin, assistant US attorney general for national security. "And it is not conduct that most responsible nations within the global economic community would tolerate."

But few countries want to upset China and suffer trade repercussions. The lack of support for the US position could also be due to other countries committing the same practices as China.

"I have no comments on the US action on China," said Joao Vale de Almeida, the European Union's ambassador to the U.S.

Still, the Obama administration says it is committed to bringing the five Chinese men to justice, and it says this case will be the first of many like it.

In a 2003 case, the US charged a Cuban general and two pilots with murder in the shooting down of two civilian planes in 1996. Like China, the US has no extradition treaty with Cuba. And, at the time, some questioned whether the indictment was politically motivated.

Eleven years later, the former US attorney in Miami in 2003, Marcos Jimenez, said the case against the Cuban military officials was still worth bringing, even if no one was ever prosecuted in the US.

"It's a message to the world that we're not going to tolerate these types of crimes," Jimenez said. "You can't just kill unarmed civilians in international air space. You can't just hack into our computer systems. These aren't things that we're just going to ignore and not prosecute."

That case has been stagnant since 2003.

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