Peter Zeidenberg is a partner in the white-collar and investigations practice at the Arent Fox law firm in the District and represented both Xiafen “Sherry” Chen and Xiaoxing Xi.
News item: Xiafen “Sherry” Chen, a Chinese American hydrologist at the National Oceanic and Atmospheric Administration, is arrested at her office; the U.S. government accuses her of illegally accessing data at the behest of Chinese officials; less than a week before going to trial, the government drops all charges.
News item: Xiaoxing Xi, Chinese American chairman of the physics department at Temple University, is arrested at his home in front of his wife and children by a dozen armed agents; the government accuses him of helping the Chinese by providing them with proprietary materials owned by a U.S. company; all charges are dismissed after a PowerPoint presentation that includes affidavits from prominent physicists makes clear that no crime was committed.
Hardly a week goes by without a headline about Chinese hackers assaulting this nation’s computer systems. The targets, according to news reports, include government agencies as well as private industry. The source of these attacks, we are told, is the Chinese government.
In addition to computer hacking, China has been accused of engaging in a campaign of economic espionage in which agents in the United States are tasked with stealing trade secrets from their employers and sharing the information with the Chinese government.
It’s nearly impossible for an outside observer to judge the accuracy of these reports. As citizens, we are conditioned to believe that they are truthful and that the threat is real.
And while the danger posed by Chinese agents may indeed be real, so is the danger of overreacting to it. The recent Justice Department prosecutions of my clients Chen and Xi suggest that, in their zeal, prosecutors have proceeded as if wearing blinders, ignoring evidence that contradicts their theories of guilt and plowing ahead with prosecutions that should never have been brought.
As a result, innocent U.S. citizens have been victimized by their government. They have been held up to public opprobrium, had their employment and livelihoods threatened and been forced to pay for legal defenses that could easily bankrupt anyone of modest means. The harm caused by the government’s aggressive overreach can hardly be overstated.
Why is this happening? The rise of the Soviet Union as a global superpower after World War II and, in particular, its successful testing of a nuclear bomb in 1949 led to what later became known as the “Red Scare.” It was characterized by the loss of civil rights and, at times, the indiscriminate targeting of many loyal, innocent Americans who were suspected of being communists or communist sympathizers. Once targeted by the government, these citizens were harassed and often lost their jobs. Some were prosecuted and thrown in prison.
While the threat of communist subversives in our society was, to some extent, real, the overreaction to this potential threat led to many thousands of innocent U.S. citizens being unfairly and wrongly targeted.
It appears that we are now in danger of repeating our mistakes. Instead of communism, the fear is centered on Chinese hacking and espionage, and the threats are economic rather than ideological . But the threat to our fellow citizens is the same: It is far easier to make an allegation than to disprove one. And once an allegation has been made public, it is nearly impossible to remove the stain on a person’s reputation.
Although the cases against Chen and Xi have been dismissed, their ordeals have left indelible marks. Chen was suspended without pay at the time of her indictment and was recently informed that the Commerce Department is seeking to terminate her employment at NOAA based on these same discredited charges.
Xi initially was put on administrative leave at Temple to allow him to concentrate on his case, and his chairmanship was suspended. He has since been reinstated as interim chairman. But his reputation has been tarnished, and he fears that some will always look at him with suspicion.
Both Chen and Xi have had to borrow heavily to pay their legal fees. And the trauma that each experienced when unexpectedly surrounded by the armed federal agents who then led them away in handcuffs is something that will not soon fade away.
What should be done? Much, if not all, of the harm in these two cases could have been mitigated had the government done what it typically does in white-collar cases — provide suspects with a “target letter” notifying them that it intends to charge them with a crime and requesting that they have an attorney contact prosecutors. This would have provided Chen and Xi the opportunity to present their defense, through counsel, before charges were brought publicly. Instead, the government rushed ahead, seeking headlines and an opportunity to make examples out of them both. In addition, prosecutors must vigorously pressure-test these types of cases before bringing charges; the fact that they involve allegations of potential espionage on behalf of China cannot justify taking shortcuts.
The threat posed by Chinese hackers intent on stealing U.S. technologies is a justifiable federal concern. But this concern cannot override the need to act carefully and with prudence. Otherwise, the most significant harm to U.S. society may end up being self-inflicted.