The New York Times published a guest essay on September 14, 2022, entitled “China is Running Covert Operations That Could Seriously Overwhelm Us.”  The essay addresses the challenges presented by China’s covert intelligence collection efforts to obtain military and national security related information.  This should not surprise anyone who has been involved with China in recent years.

Whether militarily or economically, China’s industrial capacity, combined with its advantageous numbers in population, are enough to raise concerns for any country.  It is best to look at and consider China’s covert activities through a wide lens.  Aside from the size and capabilities of its military, China has become the second largest economy in the world in a relatively short period of time. 

One aspect of U.S.-China competition is commercial trade.  Within the commercial trade context, U.S. industry has been confronted by the eagerness of creative Chinese entrepreneurs to steal U.S. intellectual property (copyrights, trademarks, patents, designs, and trade secrets).  Once U.S. companies moved production to China, imaginative Chinese entrepreneurs began churning out inexpensive fake and substandard versions of the real thing.  It became much easier to access authentic products to replicate and copy when the original product is made either down the road or in a neighboring town instead of traveling long distances.

In the 1990s, U.S. companies complained to the U.S. Government about counterfeit auto parts, batteries, electrical products as well as the usual fake items found on big-city streets.  The tension arising from China’s production of counterfeit goods resulted in U.S. threats of trade sanctions in the mid-1990s until China committed to taking steps to reduce production of counterfeit items and protect U.S. owned intellectual property that was protectible in China.

The years of official statements, written agreements, and increased enforcement have not translated into a major decrease in production of counterfeit (fake) goods that are exported to the United States and the rest of the world.  One might observe that China’s efforts to access U.S. intellectual property simply moved up the food chain to obtain more advanced technologies.

While the Times essay focuses on China’s military and national security espionage activity, we should not ignore the challenges posed by economic espionage.  There have been numerous documented efforts describing economic espionage activities in the U.S.  Specifically, there have been FBI investigations and other government investigations that have resulted in successful U.S. criminal prosecutions and imprisonment of Chinese nationals.  Those caught and prosecuted for engaging in trade secrets theft, i.e., economic espionage, have attempted to steal secrets across a wide spectrum of industries such as circuit board designs for autonomous vehicles, agricultural seeds, aviation technology, and cancer fighting pharmaceutical products.

In addition to criminal prosecution under U.S. law, the U.S. Government has worked to impose obligations on trading partners to enact stronger legal protections to protect trade secrets.  The 2020 U.S.-China Economic and Trade Agreement included commitments for raising the level of protection for trade secrets in China.  The “new” NAFTA (U.S.-Mexico-Canada Trade Agreement) that went into force in 2020 included requirements for the protection of trade secrets, which was not covered in the original NAFTA.  The Comprehensive and Progressive Agreement for Trans-Pacific Partnership, a trade agreement that the U.S. helped negotiate but did not become a party to, also includes trade secrets protections.

Imposing trade secret protection and enforcement in trade agreements are a step forward.  The existence of these obligations in a trade agreement is separate and apart from actual steps being taken to enforce and protect trade secrets.  Once enacted into law in foreign countries, the relevant police, prosecutors, and courts must be committed to implementing the law.

Ultimately, preventing trade secrets theft requires government agencies, business enterprises, research, and other institutions to adopt strict protocols for protecting trade secrets.  Strict protocols, however, are meaningless without a commitment to enforce government, business, institutional protocols to protect valuable trade secret assets. 

In the end, it will be up to the entities that develop and own the trade secrets to be vigilant in protecting these economic assets.  The owners of these secrets are the first line of defense by adopting and implementing strict access procedures, working with law enforcement, and ensuring that our trading partners are living up to their obligations to provide trade secret protection to deter and prevent theft.   

U.S. businesses that develop new technologies must be committed to protecting their advantages regardless of where they operate in the world.  Economic espionage has always existed.  Efforts to protect trade secrets have trailed the pace of increased protection and enforcement of trademarks, copyrights, and patents.  Given the economic potential of trade secrets and the impetus for growth they can have, greater attention to preventing their theft is critical to success.

Timothy Trainer has participated in U.S.-China bilateral intellectual property consultations as a federal government attorney.  As a private sector attorney, he has conducted training for Chinese customs officials and represented clients in intellectual property disputes.

The gently sloping hills of Arlington National Cemetery overlook the nation’s capital.  From this vantage point, thousands of soldiers, sailors, airmen and marines look across the Potomac River in formation.  It is as if in their passing, they continue to look over us and the country because it is their legacy. 

Here, colonels are among corporals and privates among generals.  Alas, they have come together for their final rest.  Some served for a short time while others did so for a lifetime.  But now, time is irrelevant as we salute them, pay respect to their deeds forever as they have arrived for their final rest. 

Overwhelmingly, those who rest here are unknown but to their loved ones and the brothers and sisters in arms with whom they served.  Often, their heroic actions are unknown to their parents, spouses, children, and grandchildren.  For the family, the only way they may know is through a written citation that accompanies the awarding of a medal.  Or, if they have met those with whom their loved one served.  Those heroic deeds are known only to those who, in their most life-threatening moments, served at their side to keep each other alive to see another dawn.

Today, March 5, my father’s ashes will be interred in Arlington National Cemetery for his final rest.  Officially, the documents inform us that Emerson “Top” Trainer retired from the Army after over 21 years of active duty.  Those years spanned the period from November 1949 to March 1971.  He was seventeen when he enlisted and found himself in Korea a few months after his eighteenth birthday and just weeks after the outbreak of the Korean War.  He was seriously wounded in January 1951. 

He kept re-enlisting.  He knew the risks, but he had also found a “home”.  While he didn’t excel in school, he was very good at soldiering.  From the ice and cold of Korea in the 1950s, the heat and humidity of Vietnam greeted him in the 1960s.  As he rose through the ranks to become a First Sergeant in a rifle company in Vietnam, his experience and contribution to the lives of his young soldiers were not unnoticed.

Retired General McCaffrey, my father’s company commander in 1968, wrote in the Foreword of The Fortunate Son: Top, Through the Eyes of Others that “He gave a sense of being the ‘father’ of these young soldiers. Absolutely fearless. Quiet. Dignified. A teacher. Very gentle way of dealing with people. He was a natural leader. He expected to be obeyed.”  As a young captain and company commander, General McCaffrey added that “I considered him to be the co-commander of the company. He was a rock. The soldiers loved him. He was one of them.” 

After two combat tours of duty in Vietnam and another Purple Heart, the Army was clear that its losses of combat-experienced senior non-commissioned officers dictated that he be placed back on orders for Vietnam after recuperating from burns he suffered.  He reluctantly retired from his Army family.   

Though he no longer wore the uniform, he was never anything but a soldier in mind and spirit.  As the years passed, the young soldiers he had helped get through their combat tours in Vietnam sought him out, and he relished being with them at reunions and other gatherings.  He liked being with other soldiers.  He was in his element.  He understood them, and they understood him.  He made life-long bonds as evidenced by the fact that half a century after serving together in Vietnam, he regularly attended reunions, weekend gatherings, and spoke often to his former soldiers.

For him and so many who are at eternal rest in Arlington, so much about who they were and what kind of soldiers they were is told by what appears on the uniform they wore.  Luckily for my family, there is a group of men who wanted to express their respect for their “Top” (their First Sergeant).  In The Fortunate Son, they described publicly their Vietnam experience and the impact that Top had on their lives so that he would know what he meant to them. 

We are fortunate.  Over the years, we have spent time with many of the men who served with our soldier.  While tears may be shed on this day that he is interred, we celebrate his life and the many positive effects he had on the lives of his brothers in arms and their families.    

If you find yourself in the nation’s capital, look west across the national mall to the rolling hills beyond the Lincoln Memorial.  You may see those who have watched over the country still in perfect formation and wonder if we continue to be worthy of their service and sacrifice.