International Trade > AG Trade Law > OPM and Where The Lines Are
01 Jul '15

OPM and Where The Lines Are

The recent hacking of the sensitive personal information of millions of American public servants at the Office of Personnel Management (OPM) points out a noteworthy distinction in how the U.S. government views some types of cybersecurity breaches for which foreign governments allegedly are responsible.  

In the face of the hacking of personal information from OPM, reportedly including highly sensitive information from applications for high-level security clearances, both Vice President Biden and Treasury Secretary Lew publicly criticized what seemed to be a different set of hacking activities allegedly undertaken by China. Their comments, at least as reported in the press, addressed the alleged hacking by the Chinese of important commercial information from U.S. companies in order to provide it to Chinese companies and gain a competitive edge. Vice President Biden said, “Nations that use cyber technology and economic weapons to profit from the theft of intellectual property are sacrificing tomorrow’s gains for short-term gains today.” (The Wall Street Journal, June 23, 2015) Secretary Lew said, “We remain deeply concerned about government-sponsored cybertheft from companies and commercial sectors.” (The New York Times, June 23, 2015) If that seeming pivot was not readily noticed by all, its potential meaning became clearer when the Director of National Intelligence James Clapper commented, also last week, about the OPM hack, “You know on the one hand, please don’t take this the wrong way, but you have to kind of salute the Chinese for what they did,” Clapper said, speaking at the GeoInt Symposium in D.C. “If we had the opportunity to do that, I don’t think we’d hesitate for a minute.” (The Hill, June 25, 2015) Thus, it appears that whatever may be going on behind the scenes by way of response to the massive OPM thefts, including in the intelligence community, the U.S. government is publicly emphasizing its long-expressed concern with hacking by China of commercial secrets and use of those secrets to undermine competitive markets.  (See, e.g., President Obama: “We look to China to become an innovative economy that values the protection of intellectual property rights, and rejects cybertheft of trade secrets for commercial gain….” (The Hill, November 10, 2014))

While one alternative explanation for the posture last week could be that the United States has not wanted to attribute the OPM hacking to China publicly and therefore would not talk about China in that context, Director Clapper’s remarks, even with his clarification that China is certainly “the leading suspect,” suggests that there is more to it.

The line between commercial espionage that distorts competitive markets and the age-old practice of government spying is important for the U.S. government in its dealings with China and other nations. The United States’ desire to preserve and emphasize that line seemed to be on display last week.