The Chinese hacking indictments: Where’s the strategy?

[Commentary] On May 19, the Obama Administration announced indictments of five Chinese military officers for cyber-espionage 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 US 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 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. 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.

[Rabkin is a researcher interested in techniques for building and debugging complex software systems and a guest contributor to TechPolicyDaily.com]