Legal Recourse for International Economic Espionage Activities Thomas Finch

The Problem: Limited legal options for recourse in international cases of economic (industrial) espionage. Companies/governments conspire to use various computer resources to steal information from companies overseas. U.S. laws don’t apply, since theft was initiated from overseas platform. International regulations don’t have the strength to be enforced.

Operation Aurora: Occurred in second half of Systematic attack (now assumed launched by Chinese universities with ties to the military) on primarily American based corporations. Primary victim was Google. Chinese hackers stole Google’s intellectual property. Used Google to access confidential DoD information. Chinese claimed it was an “American Conspiracy”, never admitted responsibility. No options available for legal recourse, as China never claimed responsibility.

Operation Aurora: “A targeted user received a link in or instant message from a “trusted” source. The user clicked on the link which caused them to visit a website hosted in Taiwan that also contained a malicious JavaScript payload. The user’s browser downloaded and executed the malicious JavaScript, which included a zero day Internet Explorer (IE) exploit. The exploit downloaded a binary disguised as an image from Taiwan servers and executed the malicious payload. The payload set up a backdoor and connected to command and control servers in Taiwan.”

Operation Aurora: Because there were no legal options for recourse, Google suspended some services in China for a time. Smaller companies don’t have this luxury, require some option to recoup losses.

United States of America v. Wang Dong: Several members of the People’s Liberation Army (including Wang Dong) were indicted in 2014 on charges of economic espionage. Indictment != Conviction Allegedly used a series of malware attacks to steal confidential information from several American companies. Confidential information then used by Chinese companies to under-bid on contracts and steal American business. Arrest warrants issued. Case cannot proceed any farther, as individuals in question reside in China, and Chinese government is refusing to cooperate.

United States of America v. Wang Dong: Indicted under Economic Espionage Act of Used in processing domestic cases of economic espionage, U.S. v. Wang Dong is first case of it being used to attempt to prosecute internationals. Cannot proceed without consent of Chinese government, more of a political statement than actual attempt at legal action. Companies in question have no way to recoup losses caused by theft of information.

Proposed Solution: TRIPS Agreement already exists. Agreement on Trade-Related Aspects of Intellectual Property Rights WTO Agreement, technically binding to all industrialized countries. However, no means of enforcement. Creation of a WTO dispute settlement committee to impartially investigate and prosecute cases of international economic espionage. Countries cannot be allowed to continue to steal from each other with no recourse.