Lawfare and Beyond: The Intellectual Property Front in the US-China Trade War

Just how sustainable will U.S. efforts at ‘lawfare’ in protecting intellectual property be?

Lawfare and Beyond: The Intellectual Property Front in the US-China Trade War
Credit: Flickr/ Kārlis Dambrāns

Conflicts over intellectual property protection continue to constitute one of the central fronts in the broader trade war between China and the United States. Economic espionage threatens individual U.S. firms, but also the overall technology ecosystem that the United States has developed. Consequently, the Trump administration (and the Obama administration before it) has determined that Chinese espionage poses a core national security threat.

The United States has laid out an impressive case against China. The “China Initiative” from the U.S. Department of Justice focuses directly on Chinese espionage against U.S. firms, as well as other means of acquiring technology from the United States and other Western countries. The Commerce Department similarly laid the foundation for expanding export controls on a variety of sensitive technologies, including artificial intelligence.

Canada’s arrest of a Huawei executive on bank fraud allegations suggests that the United States is becoming altogether less shy about using aggressive tools to manage perceived Chinese misbehavior. As Julian Ku argues, the United States has ample legal justification for this arrest. Jin Kai frames extraterritorial arrests within the broader context of “gray zone” conduct of trade war between China and the United States. The United States, in short, is waging a campaign of “lawfare,” built upon the legal and economic foundations that it has established for the liberal international order.

All uses of power take place within a social universe; even the destruction of a warship or factory by a cruise missile takes meaning from shared understandings between the two actors and the universe of observers. But the legal and economic steps that the United States has decided to undertake exist almost wholly in a consensual social universe that the United States, China, and the rest of the world have decided to live within. This universe has rules that only exist because the members agree that they exist, even if not all of those rules are truly consensual at any given point.

But U.S. policymakers must understand: The means that they have taken to wage economic war against Russia, China, and the United States depend entirely upon global perceptions of U.S. legitimacy. Arresting a Chinese citizen for violating U.S. sanctions law against Iran can only succeed if governments around the world concur with the justice of the U.S. approach against Iran, and on the legitimacy of the tools that Washington has decided to use. There’s obviously some wiggle room; the European Union won’t blow up the entire global financial and legal architecture on behalf of either Iran or Huawei, for example.

But first at the margins, and later at the core, the overuse of such tools will lead to noncompliance, to subterfuge, and eventually to outright resistance, even on the part of U.S. allies. For now, the United States has the acquiescence, and even support, of a coalition necessary to make this gray zone warfare successful. The Five Eyes (the U.S., U.K., Canada, Australia, and New Zealand) seem, for the time, to be wholly on board with U.S. steps against China, and other powerful actors (Japan, Germany, and France) also seem supportive. But while in the past the United States has won the acquiescence of its allies through a moderate approach to trade policy, the Trump administration has taken a much more aggressive course on trade, and has stepped back from defense of the very liberal international order that enables “lawfare.” The sustainability of this path remains in great question.

The views expressed here are his personal views and do not necessarily reflect those of the Department of Defense, the U.S. Army, the Army War College, or any other department or agency of the U.S. government.