IV. Why Prosecution Was Possible: The Legal Framework
The prosecutions described above did not happen by accident. They became possible because Congress, over decades, built a layered legal framework specifically designed to reach foreign influence operations conducted on American soil — and because federal investigators and prosecutors developed the expertise to use that framework against a sophisticated state adversary. The table below summarizes the primary statutory vehicles.
| Statute / Authority | Prosecutorial Application in CCP Cases |
|---|---|
| 18 U.S.C. § 951 | Acting as an unregistered agent of a foreign government. Does not require proof of espionage — only that the defendant acted "at the direction or control" of a foreign government without notifying the Attorney General. Primary vehicle in NYPD Angwang and overseas police station cases. |
| Economic Espionage Act 18 U.S.C. §§ 1831–1839 | Theft of trade secrets for the benefit of a foreign government or instrumentality. Section 1831 targets government-sponsored theft; § 1832 targets commercial theft. Used in Lieber (Thousand Talents concealment), Hana Akabari, and hundreds of technology transfer cases. |
| Espionage Act 18 U.S.C. §§ 793–798 | Unauthorized collection, transmission, or retention of national defense information. Core statute in Yanjun Xu (MSS officer) and Jin Tao Mak (Navy machinist's mate) cases. Section 794 carries the death penalty for peacetime transmission to a foreign government. |
| FARA 22 U.S.C. § 611 et seq. | Foreign agents must register with the DOJ. Failure is a federal felony. Used to expose and prosecute CCP-linked media organizations, diaspora organization leaders, and political operatives who failed to disclose Chinese government principals. |
| CIPA 18 U.S.C. App. III | Classified Information Procedures Act (1980). Permits courts to use classified evidence without public disclosure, via substitutions, summaries, or in camera proceedings. Critical enabler: many CCP cases rest on intelligence that cannot be fully disclosed in open court. |
| Computer Fraud and Abuse Act 18 U.S.C. § 1030 | Unauthorized access to computer systems. Used against MSS-linked hackers (APT41, APT10) for intrusions into US defense contractors, universities, and healthcare systems. |
The China Initiative
In November 2018, the Department of Justice launched the China Initiative — a dedicated prosecutorial and investigative program specifically targeting Chinese economic espionage, theft of trade secrets, hacking, and covert influence operations. The Initiative directed FBI field offices to prioritize China-related counterintelligence cases, facilitated interagency information sharing, and produced a significant increase in the number of prosecutions related to Thousand Talents, FARA violations, and technology theft (U.S. Department of Justice, 2018).
The China Initiative generated significant controversy by 2022, when civil liberties organizations and academic groups documented a pattern of prosecutions of Chinese and Chinese-American researchers that appeared to involve weak evidence and allegations that were ultimately dismissed or acquitted. An MIT analysis found that 90% of defendants charged under the Initiative were of Chinese origin, and numerous cases ended in acquittal or dismissal, raising concerns about racial profiling in case selection (Demirjian, 2022). The DOJ terminated the China Initiative by name in February 2022, replacing it with a broader "Strategy for Countering Nation-State Threats" that addresses Russia, Iran, and North Korea alongside China. The underlying legal authorities and investigative priorities remain in effect.
The Role of CIPA in Enabling Prosecution
Many CCP espionage cases involve intelligence gathered through classified means — signals intelligence, human source reporting, or court-authorized surveillance under the Foreign Intelligence Surveillance Act (FISA). The evidentiary challenge is that this material cannot be disclosed in open court without compromising sources and methods. The Classified Information Procedures Act (CIPA), enacted in 1980, resolves this tension by creating a pre-trial process through which the government and defense counsel — both operating under security clearances — can address the use of classified material, and the court can authorize substitutions, summaries, or other alternatives that preserve both the defendant's right to a fair trial and the government's legitimate security interests. Without CIPA, cases where the strongest evidence is classified would be effectively unprosecutable (Goldsmith, 2012).