Attacks/Breaches
5/29/2014
05:35 PM
Ira Winkler
Ira Winkler
Commentary
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Indicting Chinese Military Officers Is A Huge Mistake

Blaming soldiers following lawful orders only deflects from the government's responsibility to impose trade sanctions and take more useful measures.

When I read that the Department of Justice was charging five Chinese military officers with cyber espionage related crimes, I knew it was a bad idea from the start.

Looking at the rationale for the charges, I have no doubt that the intelligence that identified these five individuals is solid. It is also very likely that the Chinese soldiers are breaking into the corporations named in the indictment. While the Department of Justice might acknowledge that military officers will commit espionage to further their national interests, the DoJ might believe it is wrong to hack companies for industrial purposes.

The reality though is that at best the indictment is an attempt to deflect fallout from Snowden's treason. It is very true that while NSA has demonstrated itself to be more effective at gathering intelligence and infiltrating networks, China's hacking efforts are much more damaging to the US and world economy. NSA data has not been provided to private companies to make them more competitive, while China uses its cyber espionage to commit a form of technology transfer to Chinese companies. So calling attention to the economic impact of Chinese hacking is a reasonable goal.

Unfortunately, indicting military officers is a horrible way to do this. While the US might believe that committing espionage for the benefit of private companies is wrong, that is a moral judgment that is a relatively rare position to take. Israel, France, Germany, Russia, Japan, South Korea, and just about every other country with an intelligence capability believes that supporting their businesses supports their economy, and is their national interest. While China might be the most egregious in their actions, they are not alone.

Then there is the issue of charging military officers, who are sitting in their home country, following what are lawful orders (at least for them) from their superiors. Unless the Department of Justice is claiming that these five military officers are going rogue and committing these actions for their own personal benefit, there is no doubt that the issue is with the Chinese government. These military officers are just doing what they are told to do, and will be severely punished for refusing to do so.

Industrial versus government espionage
Before I continue, I want to very clearly state that I am against what China and other foreign governments are doing with regard to industrial espionage. I am not condoning their behavior. I am however against making soldiers criminally liable for following lawful orders within their own borders. Again, this is a nation-state issue.

When a nation is assigning their military and civilian employees to commit an act that the US considers criminal, the charge should be against the country that is providing the resources to commit the criminal acts, including paying and directing those people to commit the acts. The actions a government can legitimately take include trade sanctions, eliminating foreign aid, and taking military action. If anyone thinks charging Chinese military officers with crimes is demonstrating support for US businesses, they are fools, as the US is actually refusing to take any tangible actions against China. 

China has responded by frankly doing what I would expect; setting cyber security relations back years. The indictments created no benefit to the US except to call temporary attention to Chinese government hacking efforts.

While I hate the expression "slippery slope," what the US government has done is a very slippery slope. Lets consider what happens should China and other nations choose to want to prosecute any member of the US military or employee of an intelligence agency. As I mentioned before, there is no difference for most foreign governments between the collection of military and economic information. Can China or any other country choose random NSA employees and prosecute them for potentially spying on them? In even more extreme cases, can drone operators be charged with murder?

Regardless of whether or not you believe a country should be spying on another country, to specifically charge soldiers of crimes where they are just the random operators in the case is flat out wrong. The US is shirking the much more difficult political responsibility of imposing trade sanctions on the companies that receive and market the stolen technologies, as well as their governments. 

The fact of the matter is that charging what amounts to soldiers, whom there is no chance in hell of ever prosecuting, is a damaging act that might make some people happy, but only has a negative impact on the large picture. The only tangible impact to come out of this is that the five Chinese people charged will probably not attend the Black Hat conference this year.

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RyanSepe
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RyanSepe,
User Rank: Ninja
5/30/2014 | 11:40:48 AM
Re: Following orders is often criminalized
This was a very well thought out and articulated response. I agree with most of the points you propose however I think some need to be analyzed.

Equating tortue and genocide to cyber espionage is not equatable on any scale. Following orders is tricky but I believe there is a fine line between the above concepts where a person of good conscience would say that I am willing to perform cyber espionage if that is my job backed by my country over killing and torturing human beings.

There is a moral boundary that is crossed with cyber espionage, however the boundaries may be initialized differently within different environments. Prime example between Chinese and US laws. Meaning that a person could have developed a code of ethics that allows them to perform things differently in China that growing up in the US may not have allowed and vice-versa. If there isn't an overall universal standard, it is hard to enforce such laws on a grand scale.
anon3493590510
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anon3493590510,
User Rank: Apprentice
5/29/2014 | 10:48:54 PM
Following orders is often criminalized
On first reading the position offered in this post seems reasonable and well-founded. But it comes up short in important ways.

The idea that soldiers, following orders that are for them lawful, are immune to criminal sanction by other nations is just wrong. On the contrary, the principle of "comity" which fathers State Immunity laws in most nations makes legal recourse against foreign governments completely unattainable in the circumstances in question. This leaves only recourse against the individuals who actually commit the criminal acts.

Moreover there is an extensive and growing body of international law, certainly post-Nuremberg, that clearly makes individuals accountable for their actions, even under orders that are for them lawful. It is a matter of degree and legal evolution to consider hwo far those laws should reach. The reach may have started at genocide but it has moved beyond that to isolated incidents of torture.

I recognize that there is a vast degree of normative difference between torture and large scale commercial theft. But it is correct to recognize that it is in fact a matter of degree, not principle. The principle has long been breached.

One of the most important reasons for criminalizing the behaviour of individuals under orders of a nation state is to create deterence to the greatest effect possible.

If it is countered that in some or even many cricumstances the criminal actors have no choice, there are well-established defences of coersion and necessity. So the existence of an objective threat is not sufficient cause to abandon the law.

The irony, or perhaps hypocrisy is more accurate, in this case is that the nation state that has been the most obstructive of criminalizing individual behaviour under orders, specifically criminalizing torture, has been the United States.

The U.S. refuses to ratify and will not recognize the authority of the Internaional Crimnal Court to even hear cases of torture, much less cases of theft of intellectual property or commercial espionage.

The U.S. position is precisely that individuals under lawful orders of another nation are subject to prosecution by the United States at the will of the United States, but no one else is competent to prosecute anyone other than their own citizens. That "exceptionalism" does pose a real long term threat to U.S. interests because depriving an indepdent international tribunal of jurisdiction means that offended or hostile foreign governments have the moral foundation laid by the U.S. upon which to build their own national prosecutions of U.S. citizens.

So, while I agree with that particular conclusion I do not accept the proposition that the international community must or should be incapacitated in prosecuting international scale crimes, including commercial espionage. Whether those crimes are prosecuted at an international court or through enabling legislation by national courts, there is no longer a good case that they should go unprosecuted. This already happens with international commercial law, which is enforced by national courts of the nations that are party to, for example trade agreements.

The Snowden distraction actually makes the case for new international norms such as an agreement not to spy on one another's leaders.

Two factual points: what are the sources for the assertion that various Western governments engage in commercial espionage for the private gain of non-government entities? And, while it may or may not be true that the direct frutis of U.S. espionage are not provided for private gain, it is not true that the U.S. does not conduct espionage for commercial purposes. It engages in active spying as part of its trade negotiations and disputes and renders heroic efforts on behalf of relatively small groups of companies such as the pharmaceutical and pesticide companies. No one of them may be given specific intellectual property, but the entire international system is moved to their private advantage, in part with the use of espionage against friendly governments.
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