One of the purported reasons for closing the consulate were Vienna Convention violations/IP theft. According to various press reports, the spokesperson for the State Department, Morgan Ortagus, stated that “We have directed the closure of PRC Consulate General Houston in order to protect American intellectual property and American’s [sic] private information.” Although the Trump Administration has rarely deserved the benefit of the doubt, this blog looks at the possibility that the consulate was involved in state-sponsored economic espionage.
This Administration (like Obama’s) has been very frustrated by the degree of state involvement in economic espionage matters coming from China and the lack of any effective traditional tools. For example, neither Obama nor Trump (nor any predecessors) took a WTO case pursuant to Article 39 of the TRIPS Agreement which obligates states to protect trade secrets, perhaps because the WTO is perceived as too weak, or that “everyone does it.” Still, if the extent of state-sponsored trade secret misappropriation was as great as the Administration alleges, a WTO case may have helped gather multilateral support and air US concerns multilaterally. In other displays of frustration, both Trump and Obama have pursued with some fanfare cases against state actors in absentia, often leading to good media coverage against actors such as the People’s Liberation Army, and pyrrhic ex parte convictions.
The Administration also faces another dilemma: criminal economic espionage cases have proven quite difficult since there needs to be a demonstrated state nexus. DOJ has increasingly appeared to be filing or plea bargaining to settle on “easier” cases – such as traditional trade secret cases which do not require a state nexus or has filed cases involving government grant conflict of interests, fraud, money laundering, etc. The Administration has also sought to address this through other means such as the Section 301 investigation and tariffs, trade negotiations, strengthening US export controls and CFIUS regulation, and even placing companies on the Commerce entity list where there have been allegations of overseas trade secret theft benefiting China (Fujian Jinhua/theft of Micron technology).
If an economic espionage matter were really the motivation for this sudden evacuation of the consulate and not election-year politics, a good place to look would be for a contemporaneous motivating event. The closing of the consulate announcement may be timed with an indictment in Washington State 22 hours earlier – which did have one Texas victim nexus and does allege a fairly comprehensive international state-supported economic espionage and personal data theft scheme, including vaccine-related espionage. Two Chinese hackers who are alleged to have had support from the Ministry of State Security in Guangdong were indicted. The hackers were indicted in absentia, once again leaving the US with very limited recourse. However, no one individual in the Houston Consulate is mentioned – and I imagine that in the usual course of things if a consular official were identified he would have been “PNG’d”, that is, made persona non grata and asked to leave.
Another, more intriguing alternative is that it could also be related to two cases recently discussed by FBI Director Wray, which do have a clear Texas consulate nexus. As Wray mentioned in his July 7 speech before the Hudson Institute:
“Hongjin Tan, for example, [is] a Chinese national and American lawful permanent resident. He applied to China’s Thousand Talents Program and stole more than $1 billion—that’s with a “b”—worth of trade secrets from his former employer, an Oklahoma-based petroleum company, and got caught. A few months ago, he was convicted and sent to prison.
“Or there’s the case of Shan Shi, a Texas-based scientist, also sentenced to prison earlier this year. Shi stole trade secrets regarding syntactic foam, an important naval technology used in submarines. Shi, too, had applied to China’s Thousand Talents Program, and specifically pledged to “digest” and “absorb” the relevant technology in the United States. He did this on behalf of Chinese state-owned enterprises, which ultimately planned to put the American company out of business and take over the market.
“In one of the more galling and egregious aspects of the scheme, the conspirators actually patented in China the very manufacturing process they’d stolen, and then offered their victim American company a joint venture using its own stolen technology. We’re talking about an American company that spent years and millions of dollars developing that technology, and China couldn’t replicate it—so, instead, it paid to have it stolen.”
Notwithstanding these cases, election-year politics, a general decline in bilateral relations, and national security issues may be the dominant reasons. The Administration may also have decided on an aggressive escalation at this time to also show support for countries like the UK and India as these countries have become more hawkish towards China, such as by not procuring Huawei equipment, limiting the use of Chinese social media platforms, by opposition to the National Security Law in Hong Kong, and/or by opposing Chinese maneuvers in the South China Sea.
We have limited information to even guess at the involvement of the Houston Consulate in any economic espionage activities, nor do I have any sense of the role of various Chinese intelligence agencies in this recent development, or what are the specific kinds of malfeasance that trigged this reaction by the Administration. According to the New York Times, David Stilwell at the State Department has called the Houston consulate the “epicenter” of research theft.
In terms of Chinese ministry involvement, the US indictment in Washington State points to a key role of the Ministry of State Security in technology misappropriation. If scientific research is the key focus, China’s Ministry of Science and Technology is another important agency, which has knowledgeable officials overseas and is engaged in a range of open, legitimate, and highly important collaborative activities. MoST is probably the diplomatic presence with the greatest depth on the technology involved in any of these accused technologies. However, MoST is rarely mentioned as an espionage actor by the Administration and is not even indexed as an espionage actor in recent books by Roger Faligot and Mattis/Brazil on “Chinese Spies” and “Chinese Communist Espionage”, respectively. According to the Ministry of Science and Technology, there are 75 such MoST offices overseas, including one in Houston.
It is, of course, conceivable that some of MoST’s work may not be consistent with US ethics, expectations or laws despite its overall positive role and could have been some part of the decision to retaliate. As one intriguing example of a role that could lead to conflict, by operation of Chinese law, Chinese science and technology departments in Chinese missions overseas are also in charge of vetting proposed patent prosecutions of Chinese students and patents derived from Chinese technology projects overseas, potentially placing the confidentiality of the patent disclosure at risk. Moreover, the vague rule requires in certain circumstances that the Chinese inventor (or, presumably, co-inventor) own or apply for the patent if it is not a “service invention” thereby placing these inventors in potential conflict with their host institutions overseas. See the 1986 rule “Concerning Completion of Invention Patents Overseas by Chinese Students Studying Abroad” 关于我国学者在国外完成的发明创造申请专利的规定, promulgated by the Chinese Patent Office, the Ministry of Foreign Affairs and the State Science and Technology Commission (the predecessor of MoST). This 1986 rule outlines a scenario not altogether different from the facts involved in the Shan Shi conviction – applying for a patent in China for an invention made in the United States – notwithstanding the contribution or expectation of others. Interestingly, Shan Shi was also convicted of trade secret theft by a Houston, Texas federal court.
Another possible factor in deciding how to retaliate is simply that since US consulates have been thinly staffed and the Wuhan consulate had been closed, there may be an element of consular placement politics which has occurred in the past with regard to China. The United States has also been complaining about lack of reciprocity with China in access by our diplomats. The State Department may have also calculated that even if China retaliates this was a lose-lose scenario, where China will lose more than the United States. A similar calculation may have occurred with respect to these efforts regarding reciprocity or asking Chinese journalists to leave.
Election-year politics may have been an important part of the choice of how to retaliate, even if these political motivations were not the original factor in deciding that retaliation was necessary. Closing a US consulate in retaliation for IP theft should also lead observers to question whether the Phase 1 Trade Agreement, which was intended to address “IP theft” and lead to “structural changes” had achieved its core, motivating goals. The Houston consulate closing could thus be seen as a crude acknowledgment that the Administration had failed in the primary motivations for its trade war with China. The prospects for a Phase 2 Agreement are growing darker by the day.
We may never know all the motivations for the Houston closing. Two things are clear: this type of consular politics has the potential to greatly damage bilateral relations, and we cannot anticipate all of its consequences including when this cycle of accusations and reactions will hopefully de-escalate.
Update of July 24, 2020: Matt Peterson in a July 24 article in Barron’s quotes a former USTR official, Clete Willems, who took issue with this blog:
“The administration cited intellectual-property theft in its decision to close the consulate in Houston. Mark Cohen, a law professor who worked for the U.S. Patent and Trademark office in Beijing, wrote about that: “Closing a U.S. consulate in retaliation for IP theft should also lead observers to question whether the phase-one agreement, which was intended to address ‘IP theft’ and lead to ‘structural changes’ had achieved its core, motivating goals. The Houston consulate closing could thus be seen as a crude acknowledgment that the administration had failed in the primary motivations for its trade war with China.” What do you make of that?