justice safety valve act made in china

About 80 percent of all economic espionage prosecutions brought by the U.S. Department of Justice (DOJ) allege conduct that would benefit the Chinese state, and there is at least some nexus to China in around 60 percent of all trade secret theft cases.

The Department of Justice’s China Initiative reflects the strategic priority of countering Chinese national security threats and reinforces the President’s overall national security strategy. The Initiative was launched against the background of previous findings by the Administration concerning China’s practices. In March 2018, the Office of the U.S. Trade Representative announced the results of an investigation of China’s trade practices under Section 301 of the Trade Act of 1974. It concluded, among other things, that a combination of China’s practices are unreasonable, including its outbound investment policies and sponsorship of unauthorized computer intrusions, and that “[a] range of tools may be appropriate to address these serious matters.”

In June 2018, the White House Office of Trade and Manufacturing Policy issued a report on “How China’s Economic Aggression Threatens the Technologies and Intellectual Property of the United States and the World,” documenting “the two major strategies and various acts, policies, and practices Chinese industrial policy uses in seeking to acquire the intellectual property and technologies of the world and to capture the emerging high- technology industries that will drive future economic growth.”

Identify priority trade secret theft cases, ensure that investigations are adequately resourced, and work to bring them to fruition in a timely manner and according to the facts and applicable law;

Apply the Foreign Agents Registration Act to unregistered agents seeking to advance China’s political agenda, bringing enforcement actions when appropriate;

Implement the Foreign Investment Risk Review Modernization Act (FIRRMA) for DOJ (including by working with Treasury to develop regulations under the statute and prepare for increased workflow);

Identify opportunities to better address supply chain threats, especially those impacting the telecommunications sector, prior to the transition to 5G networks;

The Department unsealed an indictment which charged four PRC nationals, three of whom were officers in the PRC’s Ministry of State Security (MSS), with participating in a wide-ranging global computer intrusion campaign targeting infectious disease research, among other things. The unsealing was followed by a global condemnation of malicious PRC cyber activities by the European Union and other countries.

The Department announced it had conducted a court-authorized operation to remove malicious web shells from hundreds of vulnerable computers in the United States running on-premises versions of MS Exchange software. These web shells had been placed on victim servers by cyber actors employed by or associated with the PRC government, which could have used the web shells to maintain and escalate persistent, unauthorized access to U.S. networks.

A professor and researcher at Massachusetts Institute of Technology (MIT) was indicted by a federal grand jury in connection with failing to disclose contracts, appointments and awards from various entities in the People’s Republic of China (PRC) to the U.S. Department of Energy.

A federal grand jury returned an indictment alleging corporate entities conspired to steal technology from a Houston-area oil & gas manufacturer. The defendant remains wanted by the FBI for purported theft of trade secrets.

A complaint and arrest warrants were unsealed in federal court in Brooklyn charging eight defendants with conspiring to act in the United States as illegal agents of the People’s Republic of China (PRC).   The defendants, allegedly acting at the direction and under the control of PRC government officials, conducted surveillance of and engaged in a campaign to harass, stalk, and coerce certain residents of the United States to return to the PRC as part of a global,l repatriation effort known as “Operation Fox Hunt.”

Jun Wei Yeo, aka Dickson Yeo, was sentenced in federal court to 14 months in prison. Yeo pleaded guilty on July 24, 2020 to acting within the United States as an illegal agent of a foreign power without first notifying the Attorney General.

A criminal complaint charged Baimadajie Angwang, 33, a New York City Police Department officer and U.S. Army reservist, with acting as an illegal agent of the People’s Republic of China (PRC) as well as committing wire fraud, making false statements and obstructing an official proceeding.

In August 2019 and August 2020, a federal grand jury in Washington, D.C., returned two separate indictments charging five computer hackers, all of whom were residents and nationals of the People’s Republic of China (PRC), with computer intrusions affecting over 100 victim companies in the United States and abroad, including software development companies, computer hardware manufacturers, telecommunications providers, social media companies, video game companies, non-profit organizations, universities, think tanks, and foreign governments, as well as pro-democracy politicians and activists in Hong Kong.

Chong Sik Yu, aka Chris Yu, and Yunseo Lee were arrested and charged with conspiring to unlawfully export dual-use electronics components, in violation of the Export Control Reform Act, and to commit wire fraud, bank fraud, and money laundering.

A federal grand jury in Spokane, Washington, returned an indictment  charging two hackers, both nationals and residents of the People’s Republic of China, with hacking into the computer systems of hundreds of victim companies, governments, non-governmental organizations, and individual dissidents, clergy, and democratic and human rights activists in the United States and abroad.The defendants in some instances acted for their own personal financial gain, and in others for the benefit of the MSS or other Chinese government agencies. The defendants remain wanted by the FBI.

Hao Zhang, 41, of China, was found guilty of economic espionage, theft of trade secrets, and conspiring to commit both offenses today, announced the Department of Justice.  The ruling was handed down by the Honorable Edward J. Davila, U.S. District Judge, following a four-day bench trial. He was sentenced to 18 months in prison in September 2020.

Charged in September 2019, Xuehua (Edward) Peng, aka Edward Peng, was sentenced yesterday to 48 months in prison and ordered to pay a $30,000 fine for acting as an agent of the People’s Republic of China’s Ministry of State Security (MSS) in connection with a scheme to conduct pickups known as “dead drops” and transport Secure Digital (SD) cards from a source in the United States to the MSS operatives in China.

Dr. James Patrick Lewis, of Fairview, West Virginia, admitted to a fraud charge involving West Virginia University. Lewis, 54, pleaded guilty to a one-count information charging him with “Federal Program Fraud.” In July 2017, Lewis entered a contract of employment with the People’s Republic of China through its “Global Experts 1000 Talents Plan.” These talent programs seek to lure overseas talent and foreign experts to bring their knowledge and experience to China and reward individuals for stealing proprietary information.

A superseding indictment was returned in Brooklyn, New York, charging Huawei Technologies Co. Ltd., the world’s largest telecommunications equipment manufacturer, and two U.S. subsidiaries with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO). The original indictment against Huawei for financial fraud was filed in January 2019.

The Department of Justice announced today that Van Andel Research Institute (VARI) has agreed to pay $5,500,000.00 to resolve allegations that it violated the False Claims Act by submitting federal grant applications and progress reports to the National Institutes of Health (NIH), in which VARI failed to disclose Chinese government grants that funded two VARI researchers. The settlement further resolves allegations that, in a December 2018 letter, VARI made certain factual representations to NIH with deliberate ignorance or reckless disregard for the truth regarding the Chinese grants.

The former head of the Chinese subsidiary of a publicly traded international multi-level marketing company and the former head of the external affairs department of the Chinese subsidiary of the same company were charged for their roles in a scheme to violate the anti-bribery and the internal control provisions of the Foreign Corrupt Practices Act (FCPA).

Tao Li, a 39-year-old Chinese national, was sentenced to 40 months in prison, followed by three years of supervised release after pleading guilty to conspiring to export military and space-grade technology to the People’s Republic of China without a license, in violation of the International Emergency Economic Powers Act (IEEPA), which makes certain unauthorized exports illegal.

Feng “Franklin” Tao, an associate professor at Kansas University, was indicted on federal charges for concealing the fact he was a full-time employee for Fuzhou University, in China, while doing research at KU that was funded by the U.S. government.  Jury trial continued from December 2021, with a new date to be determined.

Xudong Yao, aka William Yao, a software engineer at a suburban Chicago locomotive manufacturer, was charged with nine counts of theft of trade secrets for allegedly stealing proprietary information from the company and taking it to China.

Candace Marie Clairborne, a former employee of the U.S. Department of State, was sentenced to 40 months in prison, three years of supervised release, and a fine of $40,000. Clairborne was found guilty of conspiracy to defraud the United States by lying to law enforcement and background investigators, and hiding her extensive contacts with, and gifts from, agents of the People’s Republic of China, which were provided in exchange for internal documents from the U.S. State Department.

Yi-Chi Shih, an electrical engineer, was found guilty of multiple criminal charges, including a scheme to illegally obtain integrated circuits with military applications that were later exported to China without the required export license. After a six-week trial, Shih was found guilty of conspiracy to violate the International Emergency Economic Powers Act, a federal law that makes certain unauthorized exports illegal. He was sentenced to over five years in prison in July 2021.

Former U.S. Intelligence officer Kevin Patrick Mallory was convicted under the Espionage Act for conspiracy to transmit national defense information to an agent of the People’s Republic of China. He was sentenced to 20 years in prison followed by five years of supervised release.

Ying Lin, a former manager with an international air carrier headquartered in the People’s Republic of China, pleaded guilty to acting as an agent of the PRC, without prior notification to the Attorney General. Lin transported packages from John F. Kennedy International Airport to the PRC at the orders of the Chinese military officers, in violation of Transportation Security Administration regulations. Lin was subsequently sentenced to probation in December 2019.

A 10-count indictment, unsealed in the Western District of Washington, charged Huawei Device Co., Ltd. and Huawei Device Co. USA with theft of trade secrets conspiracy, attempted theft of trade secrets, seven counts of wire fraud, and one count of obstruction of justice. The indictment details Huawei’s alleged efforts to steal trade secrets from T-Mobile USA and then obstruct justice when T-Mobile threatened to sue Huawei in U.S. District Court.

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On March 11, the Fourth Session of China’s 13th National People’s Congress (NPC) adopted the Decision of the National People’s Congress on Improving the Electoral System of the Hong Kong Special Administrative Region (HKSAR). This is another major step taken by the Chinese central government in governing HKSAR after the enactment of the National Security Law, which is a milestone for the implementation of “one country, two systems”.

The purpose of improving the electoral system and putting in place the necessary safety valve this time is to ensure that the political power and governance of the HKSAR are firmly in the hands of patriots, thus providing a solid institutional guarantee for the steady and sustained implementation of “one country, two systems”. As a special administrative region of the People’s Republic of China, it is a basic political ethic that the governance of Hong Kong must be in the hands of patriots.

The focus of the improvement of the electoral system this time is to adjust and optimize the broadly representative Election Committee and give it new functions. In addition to electing the chief executive of the HKSAR, the Election Committee also has the power to elect some members of the Legislative Council and participate in the nomination of all candidates for the Legislative Council members. The main purpose of this adjustment is to build a democratic system with Hong Kong characteristics that suits Hong Kong’s actual conditions so as to improve the effectiveness of HKSAR government governance, fully unleash the vitality of Hong Kong society, and enable Hong Kong people to live and work in peace and contentment.

What needs to be pointed out is that the basis for the Chinese government to govern Hong Kong is China’s Constitution and the Basic Law, instead of the Sino-British Joint Declaration. The core essence of the Joint Declaration is to ensure Hong Kong’s return to the motherland. After the return of Hong Kong, the historic mission of the Joint Declaration has been completed. The British side has no sovereignty, governance or oversight over Hong Kong, and it has no so-called “responsibility” to the Hong Kong people. No foreign country or organization has the right to interfere in Hong Kong affairs or China’s internal affairs under the pretext of the Joint Declaration. Recently, at the 46th Session of the UN Human Rights Council, 71 countries made joint statements and more than 20 countries made separate statements, to support China’s positions and steps on Hong Kong-related issues and oppose other countries’ interference in Hong Kong affairs and China’s internal affairs. The voice of justice from the international community fully demonstrates who is right and who is wrong.

All the efforts we have made or are going to make, be it the enactment of the National Security Law or the improvement of the electoral system in HKSAR, all aim to uphold and improve the principle of “one country, two systems” and ensure its steady and sound implementation. There is no such thing as changing the “one country, two systems” principle. After the electoral system and rules are revised and straightened out, the “Hong Kong” ship, under the principle of “one country, two systems”, will brave the waves and sail far, and Hong Kong will embrace an even brighter future.

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(Washington, DC) – A major criminal justice reform bill introduced in the US Congress on June 25, 2015, could improve the fairness of federal prison sentencing and better protect the rights of prisoners, Human Rights Watch said today. The bill, the Safe, Accountable, Fair, Effective (SAFE) Justice Act, is sponsored by Representatives Jim Sensenbrenner of Wisconsin and Bobby Scott of Virginia.

“Federal prisons are filled beyond capacity with people serving grotesquely long sentences,” said Antonio Ginatta, US advocacy director at Human Rights Watch. “The SAFE Justice Act proposes thoughtful reforms that address some of the abuses of the ‘tough on crime’ era.”

The SAFE Justice Act proposes reforms throughout all stages of the criminal justice process, from pretrial detention to post-confinement probation. It embraces general criminal justice principles supported by Human Rights Watch, including, for example, eligibility for retroactive application of sentence reductions. Several sections of the bill specifically propose reforms that were analyzed in several recent Human Rights Watch reports:

The SAFE Justice Act would reform federal sentencing statutes to promote fairer results. It would modify mandatory minimum sentences so that they exclude people whose role in a drug trafficking offense is low-level or minimal. The bill also would give judges more discretion through “safety valves” to impose sentences on drug offenders shorter than those required by mandatory minimums. And it would narrow sentencing enhancements that currently can turn a 10-year sentence into a life sentence due to prior drug crimes. With these reforms, prosecutors would no longer be able to threaten disproportionately long and unfair sentences in federal drug cases, as Human Rights Watch documented in a 2013 report.

The bill would also make much needed changes to the federal compassionate release program. As Human Rights Watch reported in 2012, the US Bureau of Prisons has underused the compassionate release program, which allows for people in prison to be released for “extraordinary and compelling” reasons. The SAFE Justice Act would give people in prison the right to petition a court directly for compassionate release – without requiring Bureau of Prison approval as is currently the case – and allow for a prisoner to seek compassionate release in cases involving the death or incapacitation of their child’s primary caregiver.

The SAFE Justice Act would require the US Attorney General to provide training to federal correctional staff on how to better identify and respond to people with mental disabilities under their custody as well as on de-escalation techniques for their responses. This provision is consistent with a key recommendation from a recent Human Rights Watch report on use of force against inmates with mental disabilities.

The SAFE Justice Act is the outcome of the House Judiciary Committee’s task force on over-criminalization, chaired by Sensenbrenner, with Scott as its ranking member. Authorized in 2013, the task force assessed the massive growth of federal criminal offenses and the soaring federal prison population since the 1980s. Human Rights Watch submitted testimony to the task force addressing the issue of disproportionately long federal sentences.

The introduction of the SAFE Justice Act in the House of Representatives follows the introduction of several reform-minded bills in the Senate, including the Smarter Sentencing Act – which would cut the length of certain mandatory minimum sentences for drug offenses in half – and the flawed CORRECTIONS Act, which, as introduced, fails to address mandatory minimum sentences and sentencing enhancements at all.

Congress should pass the SAFE Justice Act as well as additional reforms to bring federal sentencing in line with principles of proportionality, fairness, and respect for human dignity, Human Rights Watch said.

“The SAFE Justice Act is not a cure-all, but a smartly crafted bill that would better align the federal prison system with its human rights obligations,” Ginatta said. “It’s a promising vehicle for change.”

This act would provide sentencing judges with discretion to depart from mandatory minimum sentences for nonviolent offenders who meet specified criteria.

(2) Involve any sexual contact offense by the defendant against a minor (other than an offense involving sexual conduct where the victim was at least 13 years old and the offender was not more than four years older than the victim and the sexual conduct was consensual);

(B) The court may depart from the applicable mandatory minimum sentence if the court finds substantial and compelling reasons on the record that, in giving due regard to the nature of the crime, history and character of the defendant and his or her chances of successful rehabilitation that:

(A) Upon departing from mandatory minimum sentences, judges shall report to [the Sentencing Commission or other appropriate agency] which shall, one year following the enactment of this statute and annually thereafter, make available in electronic form and on the World Wide Web, a report as to the number of departures from mandatory minimum sentences made by each judge in the state.

(A) Twenty-five percent of the savings realized as a result of this act shall revert to the general fund to advance evidence-based practices shown to reduce recidivism.

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A favorite opera character for ordinary Chinese is the black-faced Bao Gong (Justice Bao), an ancient, saintly arbiter so incorruptible that he even punishes the emperor"s son-in-law.

But as China undergoes a massive transition to a market economy - something that may bring social unrest - Chinese leaders are moving to reform the feudal and Soviet-era-style justice system in the hope that this will provide an important "safety valve" for popular grievances. It is a vast and difficult undertaking.

So far, the main change is a gradual regularization of commercial law. Chinese leaders like economic reformer Premier Zhu Rongji continue to assert publicly that a healthy market economy and overseas investment depends on a fair adjudication of rights, and reliable courts that can honor and enforce contracts made by foreigners.

Last year, for the first time, a lawyer was appointed chief justice of the Chinese Supreme People"s Court, China"s highest court. The same year, the court ordered all members of the legal profession to receive legal training. Revelations at the People"s Congress in March that the new rule had not been enforced set off fierce diatribes - resulting in last month"s decision on legal training for judges, lawyers, and prosecutors.

During the Cultural Revolution of the 1960s and "70s, Chinese courts had almost no uniform rules. In 1980, a small booklet of some 170 basic rules governing trials, guilt and innocence, and procedures was introduced. Steadily, the judicial system added new codes, practices, and rules - culminating in a major liberalizing Judicial Reform Plan in 1996. That reform included new trial procedures, most importantly a presumption of innocence. Defense lawyers were allowed to see the accused before trial and to see what kinds of evidence would be presented, and were given more leeway to ask questions in court.

In practice, judges and lawyers are only starting to sort out these changes. The presumption of innocence means judges who formerly rubber-stamped a guilty verdict now have to weigh evidence - although conviction rates in most courts still run between 95 and 98 percent.

"I can write a note to the police saying that someone stole $100,000 from a company," one lawyer stated. "That person can be brought to court with little more than my note. An American lawyer might win with legal knowledge, history, case law, and briefs. In China, what still matters is the lawyer"s contacts, money, and the human influence."

One characteristic of a Chinese society that has long been controlled, say some legal scholars here, is a bias against defendants. Said one judge in Xian: "The Chinese people hate the criminal defendants.... In the Chinese people"s eyes, the arrest is the No. 1 thing; everything else comes after that. Even if the procedure isn"t right, what people care about is a result. The ends justify the means."

CHICAGO, IL December 18, 2009-Terence Halliday, co-Director of the Center on Law and Globalization and Research Professor at the American Bar Foundation, presented a program with his co-author, Sida Liu, University of Wisconsin, at the Council on Foreign Relations in New York in late November. Halliday and Liu addressed the Winston Lord Roundtable on Asia, the Rule of Law, and U.S. Foreign Policy, with the question: Are Lawyers the Vanguard of Political Liberalism in China? Jerome A. Cohen, Council on Foreign Relations Adjunct Senior Fellow for Asia Studies, and one of the world’s leading authorities on criminal justice and human rights in China, presided.

Halliday said it was common to ask if China was headed down a path to democracy or to the rule of law. He asked the audience of China-specialists, international NGO representatives, lawyers, and foreign policy experts a different question. Is there any prospect in China for the emergence of political liberalism? Halliday’s National Science Foundation-funded research has shown that historically, in Europe, Latin America, Africa, and other parts of Asia, lawyers have fought for a moderate state, an open civil society, and basic legal rights, including core political rights of freedom of speech and association, and property rights. Frequently lawyers have been joined by judges, law professors, and other practicing professionals in this struggle.

A key place to discover whether real legal change is occurring in China, said Halliday, is the criminal justice system. While international media report on dramatic human rights cases, in everyday work across China ordinary lawyers are engaged in an unceasing struggle to make law work for ordinary people detained by the police. Halliday’s research investigates whether these criminal defense lawyers have any capacity to defend detainees from arbitrary arrest, protect them from confession by torture, gather evidence on their behalf, and obtain a fair trial. Whether lawyers can make a difference depends not only on changes in the criminal law and criminal procedure law, but whether ordinary citizens get legal protections in practice. Many lawyers are skeptical about law reforms and report that they have not delivered what they promised. Some lawyers even state that the 1996 Criminal Procedure Law was a step backwards. Lawyers are more vulnerable, they say, to arrest by police and pressure from prosecutors. Hundreds of lawyers have been detained or their licenses revoked because they represented their clients too energetically.

Halliday and Liu told the Council that “there is a vanguard within a vanguard in formation among Chinese lawyers.” While research is still in progress, there are clear indications of lawyers’ preferences for stronger courts that are independent of Party influence. There are stirrings of a “rule-of-law” ideology in segments of the profession and moves to collective action. Bar association leaders are participating in a new round of criminal procedure law reforms. United Nations’ norms for courts, criminal justice, lawyers’ representation, and human rights are progressively seeping into the profession as ideals. Often the domestic media in China give wide publicity to cases where lawyers defend clients against abuses by the police or unfair sentences. The political organization of lawyers, often through electronic media, is also increasing.

Halliday and Liu urged the Council audience to watch for four potential developments that may signal future directions of political liberalism in China. Halliday noted that there is the prospect of alliances between powerful interest groups in China—workers, women, religious groups—and lawyers. For instance, religious groups, most notably Christians, are using the law to defend their right to worship freely. Religious affiliations, said Halliday, “combine deep sentiments, domestic organization and moral courage with overseas support.” Another pointer is the degree to which the Party-state will rely on law as a safety valve when there is widespread anger and grievance over land expropriations, official corruption and bureaucratic ineptness. All these can lead to the social unrest the government fears. Whether the media are permitted to report on criminal justice issues and the degree of control over the internet, social networking online, and cell phone technologies will affect the ability of lawyers to lead publics to press for political liberalism. Halliday said that in many other countries a trigger of some sort—police killings, a natural disaster, massive state incompetence—can precipitate change further and faster than leaders expected.

Halliday and Liu see stirrings of lawyers in the vanguard of political liberalism. A “vanguard is emerging within a potential vanguard.” But Halliday cautioned that there is nothing inevitable about China’s future. “Many contingencies and circumstances will determine whether these movements are regressive or progressive,” he said. “This is a drama whose final acts are not yet written.”

Sida Liuis an assistant professor of Sociology and Law at the University of Wisconsin at Madison. Author of the book, The Lost Polis: Transformation of the Legal Profession in Contemporary China, published by Beijing University Press (2008 In Chinese), he writes widely on the legal profession and law in China. He is Co-Principal Investigator with Terence Halliday on a National Science Foundation multi-year research program on lawyers and criminal justice in China