On Feb. 10, a jury in Boston acquitted Litang Liang of charges that he unlawfully acted as an unregistered foreign agent for the People’s Republic of China (PRC). The criminal complaint against Liang, a China-born U.S. citizen, alleged that he maintained contact with various Chinese officials, often sharing social media posts about Chinese diaspora dissident communities and even photographs identifying “anti-China” protesters. Liang also reached out to Chinese staff when organizing a counterprotest of a Hong Kong democracy demonstration. In a 2023 press release announcing Liang’s indictment, Assistant Attorney General Matthew Olsen asserted that “[w]e will not tolerate the PRC’s efforts to interfere with public discourse and threaten civic participation in the United States.” He emphasized that the case demonstrated “the lengths that the PRC government, including its Ministry of Public Security, will go to target people in the U.S. who exercise their rights to speak out against the PRC.”. Liang’s lawyer countered that it was the U.S. that was targeting Liang for exercising his right to speak out in support of the PRC. Liang is a vocal pro-China activist and the founder of an organization advocating the peaceful reunification of Taiwan with the PRC. What the case demonstrates is the unique challenges in relying on the criminal justice system to address actions supporting foreign adversaries. Reporting to Chinese authorities about U.S.-based dissident activity is reprehensible but not necessarily a crime. In response to the verdict, some called for the creation of a new criminal offense that would specifically address conduct like Liang’s. The instinct to expand the criminal law is understandable but dangerous. Allegations of foreign interference or transnational repression (TR) are inescapably linked to communities that are defined by national origin and ethnicity. Viewing them as a law enforcement issue creates a serious risk of unacceptable profiling and politically motivated prosecutions. Creating a new offense would also criminalize conduct that is otherwise currently legal—including protected speech—when it can be attributed to a foreign power. As Liang’s case illustrates, there is a thin line between acting as an agent of a foreign government, subject to its direction and control, and as an activist politically aligned with that government. Most importantly, while law enforcement is a necessary part of a response to TR, it is not adequate to deter foreign powers or protect the rights of targets by itself.
Problems With a Criminal Law Response to Transnational Repression | Lawfare
