Problems With a Criminal Law Response to Transnational Repression

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.

Defining Transnational Repression  

The term “transnational repression” is now generally used to describe the ways states reach beyond their borders to deter overseas critics, diaspora members, and exile communities from exercising their rights. It manifests through wide-ranging tactics of coercion, intimidation, and surveillance—ranging from harassment to assassination. States may also co-opt legal and institutional processes in TR by imposing passport controls, denying consular services, or seeking extradition through international law enforcement mechanisms.

This activity is not new but has gained prominence as digital connectivity and global mobility make it easier for dissidents to remain active in their home country’s politics from abroad and for governments to monitor and pursue them internationally.

Human rights groups, law enforcement, and policymakers alike identify TR as an urgent threat. The Biden administration, for example, initiated a “whole-of-government response” to TR, and bipartisan members of Congress have introduced a steady stream of bills to address it, including calling for a new criminal offense of TR.

This momentum to tackle TR has grown steadily even though (or perhaps because) TR is undefined in domestic and international law. The absence of a clear legal definition is often cited by human rights groups and governments as a key barrier to developing a comprehensive strategy against TR, but the difficulty in codifying TR may reflect unease at it becoming a legally enforceable concept at all.

The basic idea of TR is as intuitive as the desire to stop it. Most definitions include some combination of the same four elements: foreign power involvement, bad acts, specific targets, and an intent to interfere with fundamental rights.

In sociology, where the term was coined, an expansive definition helps to fully capture and better communicate the many ways that states continue to deter dissent in their diaspora. When transplanted into law, however, this same label is not only descriptive but also prescribes a government response.

The term TR makes for a convenient shorthand and helpful conceptual framework by grouping the diverse acts used by foreign powers to control an overseas population. At the same time, the shorthand can gloss over the immense difference between TR tactics, lumping them together in a way that distorts our understanding of both the frequency and the severity of TR, as well as its sources.

To be successful, the response to TR must be as diverse and creative as TR itself. An attempt to kidnap a dissident on foreign soil, for example, calls for a different response than labeling them as a wanted terrorism suspect, even if the goal of both acts is ultimately detaining and repatriating them.

Rights vs. Security

Beneath the consensus advocating a more proactive response to TR is a divide as to whether it is conceived primarily as a threat to human rights or to national security. TR most directly violates the rights of targeted individuals, but it also threatens the sovereignty and legitimacy of states where those individuals have taken refuge.

Those who view TR with a human rights focus seek to offer special protections and resources to reduce the impact of repressive influences as much as possible. They view criminal prosecutions or sanctions as one means of deterring and preventing TR. This approach favors addressing TR regardless of where it occurs or who is behind it.

Those who view TR with a national security focus think of it as one incursion of sovereignty in the broader context of protecting state interests. Security advocates will seek the largest toolset possible to root out and punish the foreign forces behind TR, including visa restrictions, sanctions, or criminal penalties, but must also consider countervailing political and security factors when applying those tools.

Harassment or monitoring of individuals is a minimal threat to national security but is more likely to be pursued if it is connected to a state adversary that is otherwise considered a security risk. As the lawyer for Litang Liang suggested, “This case would have meant nothing if it did not involve China.”

On the other hand, TR might even be tolerated when carried out by an ally or partner. Consider the U.S.’s minimal penalty of imposing visa restrictions in response to Saudi Arabia’s brutal murder of dissident journalist Jamal Khashoggi in 2018.

In evaluating new legislation on TR, it’s important to consider how it addresses both rights and security concerns, and to be aware of the tension between these goals.

What acts of TR are human rights defenders comfortable seeing someone prosecuted or imprisoned for?

And what TR must a target endure before those with a national security focus are willing to grant them asylum or have resources diverted to their support and protection?

Distinguishing TR From “Ordinary Crime”

The unique jurisdictional, diplomatic, and security challenges in confronting TR are often framed as a need to distinguish TR from ordinary crimes not involving a foreign power.

In the context of Interpol, the international police cooperation mechanism through which members may share domestic arrest warrants and request assistance in detaining fugitives, this means distinguishing abuses of the system for politically motivated persecution from legitimate prosecutions.

In the Transnational Repression Accountability and Prevention (TRAP) Act of 2021, Congress recognized that Interpol’s databases and processes have been abused by member states to “harass and persecute political opponents, human rights defenders, or journalists.” To prevent inadvertently becoming complicit in such repression, the act prohibits extradition based solely on requests through Interpol and requires regular reports on Interpol system abuses by other nations.

The TRAP Act is the only legislation explicitly related to TR that Congress has passed to date, but it does not define TR. It avoided many of the challenges facing TR legislation by narrowly focusing on the specific problem of Interpol abuse, rather than attempting to uniformly respond to the full panoply of coercive state actions with a single tool. More broadly, the distinction between TR and “ordinary crime” reflects the perceived inadequacy of the normal criminal justice system to address TR. Authorities may dismiss victim’s complaints of TR because the conduct involved—such as online harassment or online threats—appear minor when considered individually, or they are unaware of the more serious threat to both rights and national security interests posed by a foreign power’s involvement.

TR crimes are also different from “ordinary crime” because even when the criminal justice system holds offenders accountable, the punishment of individual perpetrators is still unlikely to deter a foreign power and stop its TR. Social media stalking, harassment, or photographing of protesters can be done by anyone, so the perpetrators are easily replaceable. Their prosecution might deter some future offenders, but the rising number of even more sophisticated TR-related kidnapping and assassination attempts, crimes that already bear serious sentences, suggests that ideology or incentives will overcome these deterrence effects for some. They are committed to furthering the objectives of the foreign power and are ready to accept the consequences.

Far too often is the distinction from “ordinary crime” used to justify the creation of new TR offenses, which would criminalize currently legal conduct, or enhanced penalties for other crimes where TR is involved. This approach fails to recognize that TR is different because it requires responses beyond the criminal justice system.

Risk of Adverse Community Impact From a Law Enforcement Response

In their policy recommendations for addressing TR, human rights groups such as Freedom House caution that any new criminal legislation must be narrowly tailored. Their concern is not only that a vague new criminal charge could be easily abused to expand law enforcement power but also that even good-faith efforts to detect and disrupt TR will result in increased scrutiny of some lawful conduct, including protected speech.

Adding to this problem, TR is often carried out by members of the same refugee or minority communities it targets. For example, Shujun Wang, an active member of the New York area Chinese pro-democracy movement, was convicted of acting as a foreign agent of the PRC by reporting on his fellow dissidents to Chinese authorities. The prosecution of another leader in the dissident community, Yuanjun Tang, is ongoing and alleges similar conduct.

Because dissident groups include both the targets and the perpetrators of TR offenses, law enforcement should monitor them closely. Ironically, profiling members of these groups as likely targets of foreign government surveillance may result in their being surveilled by domestic authorities.

There is also reason to fear that political considerations will result in certain communities receiving greater police scrutiny. In February 2022, the Justice Department abandoned its controversial “China Initiative,” a special action to investigate and prosecute commercial espionage and intellectual property theft, acknowledging criticism from the civil rights community that it had “fueled a narrative of intolerance and bias.”

An MIT analysis found that the bulk of the initiative’s prosecutions had shifted from espionage to more minor violations such as omissions in immigration paperwork and grant applications by Chinese researchers. This suggested that, under pressure to raise case numbers, investigators and prosecutors weren’t just investigating identified crimes, but were actively targeting researchers with racial and ethnic ties to China and then digging for something to charge them with.

Just weeks after the China Initiative was abandoned, the FBI launched a new campaign and web page dedicated to combating TR. While not focused expressly on China, more than 70 percent of the FBI’s 24 published examples of TR prosecutions have been related to China. What’s more, there is a clear distinction between these cases and those tied to other countries: China cases usually involve offenses such as harassment, failure to register as a foreign agent, or making false statements to investigators, while the other cases almost exclusively involve charges of murder, kidnapping, or hijacking.

China is a major source of transnational repression, and the investigation of crimes is a necessary and appropriate part of addressing TR. There is a real risk, however, that an initiative that prioritizes cases involving China will lead to prosecutions that should never have happened, as it did with the China Initiative. As former U.S. Attorney Carol Lam put it, “That is the problem with initiatives. They put the cart before the horse, and often the cart doesn’t arrive at its intended destination.”

The reliance on foreign agency charges—which involve conduct helping a foreign government— to prosecute TR cases such as Litang Liang’s may indicate that prosecutors are already pursuing weaker cases.

In recognition that the harm in foreign agency prosecutions is from the covert encroachment of a foreign power rather than any unlawful acts done for that government, individuals can avoid liability by registering as a foreign agent with the attorney general. Ping Li, for example, was sentenced to four years in prison and a $250,000 fine as a foreign agent after passing along “open-source” non-secret research information at the request of Chinese law enforcement.

Challenges in Applying and Enforcing a TR Crime

There are four general elements that are commonly used in defining TR: bad acts, foreign power involvement, specific targets, and the intent to suppress rights.

Bad Acts

Creating a new criminal offense of TR would punish activity that is otherwise legal, including protected speech, when it can be tied to a foreign power. Insults, doxing, and most threats do not usually rise to the level of a crime, nor does taking photographs of people at a public protest, as Liang did.

Many activities identified as TR are, of course, already prohibited by criminal law. Existing law covers not only direct physical threats such as assassinations, assaults, and abductions but also verbal threats, coercion, surveillance, harassment, and even “proxy attacks” on family members in the home country.

For nonphysical attacks such as harassment, however, criminal penalties are reserved for the most extreme conduct, such as that which creates a reasonable fear of serious injury to an individual, their family, their intimate partners, and even their pets or companion animals.

These limits in their coverage aren’t gaps to be filled but are intended to ensure that overzealous enforcement doesn’t punish protected speech, no matter how offensive. Even the racially charged burning of a cross can only be constitutionally outlawed if there is a separate showing of the intent to place the victim in fear of bodily harm.

Definitions of TR, by contrast, do not ordinarily include any severity requirement and would include some currently legal activity. A counterprotest attempting to shut down a pro-Palestine rally, for instance, could be considered TR regardless of whether it pitched slogans or stones—as long as it was allegedly connected to a foreign state like Israel.

A second issue is that the criminal law is unable to reach some TR. Conduct such as “proxy threats” to a target’s friends and family members in the origin country, or remotely implemented online harassment, may constitute crimes but are difficult to meaningfully prosecute if the offenders are overseas.

For some common forms of TR, it is difficult to imagine how criminal law would be applied at all. Freedom House estimates that more than 60 percent of the physical TR incidents they recorded were carried out through legal procedures, such as for detention and deportation, in cooperation with the host country.

Related “legal” but harmful tactics can include passport confiscation, denial of consular services, revocation of government benefits, and the misuse of international policing mechanisms like Interpol to facilitate detention or force the return of targeted persons.

In some cases, the extraterritorial application of domestic law is considered TR, such as Hong Kong police invoking their National Security Law to demand that a U.S. internet service provider stop hosting dissident content or Thailand’s use of lese-majeste laws punishing insults to the throne.

It is unlikely that U.S. prosecutors could or would prosecute a foreign power for issuing warrants and orders purporting to enforce its domestic laws. Doing so would accomplish very little and would inevitably lead other nations to retaliate by “criminalizing” the U.S.’s many laws with extraterritorial reach.

Foreign Power Involvement

The involvement of a foreign power is at the heart of TR’s national security threat, but the degree of involvement needed to establish TR is unclear.

Consider the case of Xiaolei Wu, a Chinese music student in the U.S., who threatened his classmate, also Chinese, for her pro-democracy activism. Wu was convicted of cyberstalking and interstate transmission of threats. His actions were criminal and aimed to silence dissent, but it’s unclear whether they constitute TR if he acted only out of his own misguided patriotism. Even the FBI seemed uncertain, first listing the case on its dedicated TR resource page but later removing it.

Some proposed definitions of TR require that an act be performed by an “agent” of a foreign state, meaning that their actions are directed or controlled by that country. At the other end of the spectrum, laws such as the U.K.’s new offense of “foreign interference” require only that acts were intended to “benefit” a foreign power, regardless of whether that state was even aware of the action at all.

Between these extremes, there are countless possible gradations, such as where individuals acted in response to a foreign power’s general call for all patriots to defend the nation’s honor or its identification of an “enemy of the people.” Where a state agent incites violent protesters or hires private investigators for surveillance, are these additional actors also committing TR even if they are unaware that they are being directed by a foreign state?

As Jinrui Zhang described in his written testimony to the House Select Committee on the Chinese Communist Party, transnational repression is often through both “formal” and “informal” mechanisms. “Formal repression is carried out under the orders of the Chinese state by government workers, while informal repression is carried out organically by CCP supporters emboldened by the CCP,” Zhang wrote.

Even under current law, the prosecutor handling Xiaolei Wu’s case seemed unconcerned with these distinctions, extensively quoting descriptions of Chinese TR in their sentencing memorandum. After conceding that Wu “does not appear to have been specifically directed by the PRC government,” the prosecutors argued that his self-directed conduct was functionally a part of Chinese TR and that giving a harsher sentence would help deter the PRC’s repressive acts.

Specific Targets

TR originally focused on states’ repression of diaspora and exile communities. This definition is sometimes favored by those emphasizing rights protections because it supports groups who are uniquely vulnerable as a result of their ties to the former country, while not limiting protection to those who are politically active.

From a national security perspective, the main harm of TR is a foreign state’s incursion of national sovereignty to infringe on the rights of anyone in the host state’s territory and under its protection. The targets’ individual identity is less critical than state involvement.

The definition used by the Justice Department does not limit TR to a specific target group but mentions that “political dissidents and activists, journalists, political opponents, religious and ethnic minority groups, and members of diaspora and exile communities” are frequent targets. The FBI’s definition is limited to “diaspora and exile communities” but also includes their contacts as possible targets. Proposed legislative definitions of TR have thus far been divided on whether the victims’ ties to the perpetrating state are relevant or not.

Intent to Interfere With Rights

The word “repression” reflects a goal of discouraging the free exercise of rights and suggests a rights-protection response. 

As to what rights are involved, proposed U.S. statutory definitions have invoked the exercise of “internationally recognized” rights, or those enshrined in the First Amendment. Some nonlegal definitions of TR, from both rights groups and law enforcement, avoid referencing any external source to enumerate rights by saying only that the goal of TR should be to intimidate, silence, or harm. 

The federal criminal code already contains an offense called “conspiracy against rights” that appears at first to address many forms of TR. The crime prohibits conspiracies to “injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” 

A 2018 report by the United States–China Economic and Security Review Commission even suggested that this statute could be used to prosecute Chinese actions to suppress protests in the U.S. as suppression of First Amendment freedoms of speech and association.

Because the First Amendment itself restrains only U.S. government action, however, it is understood that purely private parties (and foreign governments) cannot be found to have conspired against it without state action. The same reasoning would apply to new TR legislation that relies on the First Amendment as well. 

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TR is a serious problem that can be managed but not cured. It persists because the states behind it believe they are acting to defend their own national security.

The bulk of incidents reported as TR involve a targeted individual accused of terrorism or extremism. Whether this is viewed as a cynical abuse of international mechanisms or the inevitable consequence of legitimizing the criminalization of broad-reaching terms like “terrorism,” it should give pause to those considering new penalties to address TR.

Policymakers should recognize TR as a pattern of coercive behavior, which can include both criminal and noncriminal activity. Prosecuting crimes is a necessary part of responding to TR. At the same time, greater awareness that seemingly isolated or trivial incidents may be part of a larger, escalating pattern of conduct can encourage interventions even before TR reaches the level of a crime.

Governments can and should be ready to support affected communities and call out repressive states, even where they don’t think a criminal prosecution is justified or productive. Individual criminal prosecutions alone are inadequate to protect the targets of TR, who are up against a nation.

Providing meaningful protection is harder, but rights groups and scholars have recommended excellent strategies beyond law enforcement. For targeted communities, these include increasing access to refugee programs and coordinated services. Governments can meaningfully address perpetrators by decreasing aid, levying sanctions, and limiting access to repressive technologies. Opening U.S. courts to civil TR litigation could empower victims to expose TR misconduct and seek their own remedy in a fair forum.

TR is here to stay. It’s worth taking the time to fully understand the harm and ensure that our responses are narrowly tailored to help effectively without creating new problems.