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MassPoint’s Hdeel Abdelhady has long characterized the U.S.-China economic confrontation as not just a “trade war,” but more consequentially as a “tech war” in which U.S. law plays an essential part, from sanctions to export controls to supply chain exclusions. MassPoint’s publications on the tech war and broader economic confrontation provide timely analysis and foresight on the U.S.-China race to dominate future technologies like artificial intelligence, 5G, and robotics, as well as the critical minerals inputs essential to modern life.

Learn about MassPoint’s related legal and strategy services here and contact Hdeel Abdelhady for more information.

Tech Wars: Emerging Technologies Law & Policy Insights (U.S.-China focus)
Academic Espionage, Academic Research, Emerging Technologies Regulation, Foreign Influence in Academia, Foreign Investment in the United States, International Trade Law, National Security Law, Tech War, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy

U.S. Restrictions on International Tech Transfer in Academia, Business, Trade

U.S. Controls Over Foreign Access to and Influence on Technology and Research in 2020: A  Quick Guide U.S. companies, academic and research institutions, and individuals are facing greater scrutiny…

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Emerging Technologies Regulation, International Trade Law, National Security Law, Tech War, Technology Export Control, Technology Transfer Regulation

U.S. Export Controls on Semiconductor Hardware: Artificial Intelligence and National Security

Perceiving China’s technological ascendance as a threat, the United States has imposed defensive legal measures, including export controls, to curb foreign access to U.S. technology by illicit and lawful means. The approach has bipartisan backing across the U.S. government.
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Doing Business in Emerging Markets, International Emergency Economic Powers Act (IEEPA), International Trade Law, Iran Sanctions, National Security Law, Sanctions, United States China Law and Policy

OFAC Cosco Shipping Tanker (Dalian) Co., Ltd. General License K: Analysis

General License K authorizes, until 12:01 eastern time on December 20, 2019 (essentially, through the end of December 19 eastern time), the above-listed prohibited transactions where they directly or indirectly involve Cosco or entities owned 50% by Cosco and are “ordinarily incident and necessary to the maintenance or wind down of transactions.”
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Doing Business in the United States, International Emergency Economic Powers Act (IEEPA), International Trade Law, Tech War, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy

New Tariffs: Potential Relevance for Huawei, Export Controls

The September 1 tariffs effective date is close in time to the expiration of the Temporary General License partially easing restrictions on Huawei. The state of U.S.-China trade talks around the expiry of the 90-day license may influence further actions. U.S. and foreign companies subject to export controls should be mindful of the potential links.
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Academic Espionage, Doing Business in the United States, International Emergency Economic Powers Act (IEEPA), International Trade Law, National Security Law, Tech War, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy, University Export Controls

Huawei: Key U.S. Legal Issues

After talks with China’s president at the G20 summit in Japan, President Trump announced on June 29 that “he would allow” U.S. companies to continue to sell “product” to Huawei. The statement, construed by some as a “concession” or “reversal” of U.S. policy toward Huawei, has generated confusion and disagreement from China “hawks” in Congress and elsewhere. This rundown of Huawei legal and policy issues discusses the presidential statement, its lack of legal effect to date, its context, and why technology industry stakeholders need to understand the complete U.S.-China technology picture to navigate developments and mitigate risk.
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Doing Business in the United States, Foreign Investment in the United States, National Security Law, Tech War, Technology Transfer Regulation, United States China Law and Policy

Digital Dating as a Matter of National Security: Grindr-CFIUS

Is a dating app a national security asset? Yes, in some cases. Foreign investment in U.S. businesses that collect and maintain U.S. citizens’ sensitive personal data is subject to national security reviews by CFIUS. From social networking to financial services to healthcare to consumer retail, companies across sectors collect, maintain, and have access to the sensitive personal data of U.S. citizens. The implications of the personal data-national security nexus are potentially wide-ranging for foreign investment in U.S. businesses.
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Critical Minerals, Doing Business in the United States, International Trade Law, Tech War, Technology Export Control, United States China Law and Policy

China’s Potential Rare Earths Export Controls: A Page From U.S. Law?

China might take a targeted approach to any restrictions on rare earth elements that echoes, or effectively duplicates, the approach of the United States, which is to control exports based on "end use" and "end user" where one or both conflict with or potentially undermine U.S. national security interests (which include technological leadership and economic security).
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Doing Business in the United States, Foreign Influence in Academia, Foreign Investment in the United States, National Security Law, Tech War, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy

U.S.-China Tech War: Whole of Government Legal Strategy

The U.S. government has adopted and is implementing a “whole-of-government” strategy to counter China. The whole-of-government approach entails a range of legal and policy measures to curb China’s access to U.S. technology, by lawful and unlawful means. These measures include, but are not limited to, stricter curbs on foreign investment in U.S. technology; restrictions on exports of “emerging technologies” like artificial intelligence; exclusions of Chinese firms from U.S. government and private supply chains through company bans; prosecutions of intellectual property theft; measures to counter “academic espionage” in American academic and research institutions; and, indirectly, and, indirectly, sanctions enforcement.
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Academic Espionage, Doing Business in the United States, Foreign Agents Registration Act, Foreign Investment in the United States, National Security Law, Tech War, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy

Huawei Ownership and the Foreign Agents Registration Act

The United States has adopted a whole-of-government approach to counter China’s “economic aggression” or “economic espionage,” umbrella terms that encompass a range of conduct including IP theft, forced technology transfer, academic espionage, and influence operations in the United States. The whole-of-government approach illustrates that the most strategically significant and complex confrontation between the United States and China is not the “trade war.” Rather, the race to dominate future technologies like artificial intelligence and 5G underpins the most complex legal and policy issues between the two nations. The U.S.-China tech war, and the United States’ whole-of-government strategy, has put Chinese technology companies under the hot light of U.S. legal and political scrutiny. Companies like Huawei and ZTE, relative unknowns in the United States until recently, have found themselves on the wrong side of U.S. law enforcement.
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Academic Espionage, Academic Research, Doing Business in the United States, Foreign Influence in Academia, Foreign Investment in the United States, National Security Law, Tech War, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy, University Export Controls

Proposed Legislation Would Restrict Foreign Participation in Academic Research

The “Protect Our Universities Act of 2019” is a a bill “to create a task force within the Department of Education to address the threat of foreign government influence and threats to academic research integrity on college campuses, and for other purposes." Among other things, the Bill would restrict foreign student participation in federally funded academic research deemed "sensitive" to national security.
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Academic Espionage, Academic Research, Doing Business in the United States, Foreign Agents Registration Act, Foreign Influence in Academia, National Security Law, Sanctions, Tech War, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy, University Export Controls

U.S.-China Trade, Technology and American Academia: The DOJ China Initiative

On national security grounds, the United States is developing and implementing a whole-of-government approach to maintain the country’s technological edge through legal and policy measures to restrict Chinese access to U.S. technology and intellectual property, including by: (1) limiting or prohibiting certain foreign investment and commercial transactions; (2) adopting export controls on emerging technologies; (3) instituting supply chain exclusions; (4) curbing participation in academic and other research; and (5) combating cyber intrusions and industrial and academic espionage.[2] Additionally, concerns about Chinese government influence have spurred proposals to regulate the activities of entities viewed as Chinese government influence operators.
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Academic Espionage, Academic Research, Doing Business in Emerging Markets, Doing Business in the United States, Foreign Influence in Academia, Foreign Investment in the United States, International Trade Law, National Security Law, Sanctions, Tech War, Technology and Human Rights, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy

U.S.-China Trade, Technology & Global Policy Issues: INFOGRAPHIC

This graphic depicts key issues between the United States and China, as identified by the United States as of January 26, 2019. This is not an exhaustive depiction, but captures key categories and sub-categories of Chinese state and private practices, state policies, and state structural characteristics that are the subject of U.S. government complaints (as raised from within and outside of the Trump Administration).
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Anti-Corruption, Business Ethics & Conduct, Doing Business in Emerging Markets, Doing Business in the United States, National Security Law, United States China Law and Policy

Trump’s Africa Strategy Targets Corruption. Extractives, and Chinese Presence

The Trump Administration's newly released Africa Strategy is likely to bring greater anti-corruption enforcement, particularly against Chinese state-owned and private firms, as well as against African officials, and African and third country private parties. Extractives industries, particularly involving nonfuel minerals like cobalt, are likely to be of particular interest.
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Academic Espionage, Academic Research, Doing Business in the United States, Foreign Agents Registration Act, Foreign Influence in Academia, National Security Law, Tech War, Technology Export Control, Technology Transfer Regulation, University Export Controls

US-China Risks to American Academia Are So Real They Are Insurable

If there remain doubts that the U.S.-China trade war and technology war present real risks for U.S. colleges and universities, a recent report that a U.S. university has secured insurance against the risk of material reductions in Chinese student enrollment should put those doubts to bed. The risks are so real that they are insurable.
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Academic Espionage, Academic Research, Doing Business in the United States, Foreign Agents Registration Act, Foreign Influence in Academia, MassPoint Legal and Strategy Advisory PLLC, National Security Law, Tech War, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy

DOJ Initiative Takes on “Chinese Economic Espionage:” Legal Issues for Academia

The Department of Justice (DOJ) recently launched an initiative to “Combat Chinese Economic Espionage.” Announced on November 1, 2018 by former Attorney General Jeff Sessions, the China Initiative acts on the Trump Administration’s previous findings “concerning China’s practices” and “reflects the Department’s strategic priority of countering Chinese national security threats and reinforces the President’s overall national security strategy.” The China Initiative presents emerging issues for academia, the technology industry, and the private sector broadly.
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Academic Espionage, Academic Research, Foreign Influence in Academia, International Trade Law, National Security Law, Tech War, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy

Tech Wars: Fundamental Research, National Security, and Technology Competition

Fundamental research is excluded from export controls jurisdiction. But given growing concerns about alleged Chinese "academic espionage" at American universities and transfers to China of U.S. scientific and technological information and know-how, including through Chinese students, researchers, and others in fundamental and research pipelines, this excerpt is re-posted separately as foreign (particularly Chinese) access to and participation in U.S. fundamental research may be curbed by non-export controls means.
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Doing Business in the United States, Foreign Investment in the United States, International Trade Law, Tech War, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy, University Export Controls

Brain Drain: Emerging Technologies Export Controls Could Spur Tech Inversions

The Department of Commerce, Bureau of Industry and Security, has begun the process of identifying "emerging technologies" that are essential to national security and, consequently, require export control. New export controls on emerging technologies could be burdensome, depending on the content of regulations and the manner of their enforcement. If the new regulatory regime is burdensome to the point that it prohibits (legally or practically) some emerging technology transfers to foreign parties, companies and others involved in emerging technologies-- particularly their development--may seek arrangements, without evading or otherwise violating ECRA or applicable regulations, to ease collaborations and other engagement with foreign parties, including by some form of technology inversion.
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Academic Research, Doing Business in the United States, Foreign Investment in the United States, National Security Law, Tech War, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy, University Export Controls

BIS Rulemaking on Emerging Technologies Export Controls- Analysis

The Department of Commerce, Bureau of Industry and Security on Nov. 19 published an Advance Notice of Proposed Rulemaking (ANPRM) on the “Review of Controls for Certain Emerging Technologies.” The ANPRM implements the Export Control Reform Act of 2018 and raises diverse legal, regulatory, policy, and commercial issues that cut across sectors and industries. Commerce seeks to advance national security goals without harming the United States’ capacity to lead in science, technology, engineering, and manufacturing. This Regulatory Update provides analysis of the ANPRM, the relevant legal framework, and considerations for commentators.
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Business Ethics & Conduct, Doing Business in Emerging Markets, Foreign Investment in the United States

Sovereign Wealth Funds: Governance & Risk for SWFs and Companies They Fund

Private companies that receive SWF and SOE investment, as well as the investors who arrange or co-invest with state-linked firms, should, when screening investments and assessing nonfinancial risk before and after the point of investment (and when additional investment is under consideration), the quality and risk inherent in the corporate structure and governance, as well as the business conduct controls of SWFs and SOEs, may affect them in the near- to longer term. In doing so, they should take a lesson from the PIF situation, post-Khashoggi.
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Academic Espionage, Academic Research, Doing Business in the United States, Foreign Investment in the United States, International Trade Law, National Security Law, Tech War, Technology and Human Rights, Technology Export Control, United States China Law and Policy, University Export Controls

Tech Wars: Restrictions on Foreign Access to U.S. Technology

Measures to curb foreign access to U.S. technology have taken and will likely take various forms that will cut across industries and legal disciplines. Among them, as discussed below, are restrictions on foreign access to and influence on U.S. technology through (1) foreign investment, (2) supply chain exclusions, (3) limits on participation in academic and other research, (4) legal or political curbs on U.S. technology access or transfers through third countries, and (5) countermeasures against foreign control of raw materials essential to technological manufacturing and innovation.
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Doing Business in the United States, International Trade Law, MassPoint News, National Security Law, Sanctions, Tech War, United States China Law and Policy

U.S. Law as Trade War Weapon

The ZTE case puts into focus the Trump Administration’s apparent strategy to use U.S. sanctions, along with anti-corruption and anti-money laundering laws, as trade war weapons, specifically as “economic tools” and “tools of economic diplomacy” that “can be important parts of broader strategies to deter, coerce, and constrain adversaries.”
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Business Ethics & Conduct, Doing Business in Emerging Markets, Global Magnitsky Sanctions, Sanctions, Tech War, Technology and Human Rights, United States China Law and Policy

Human Rights, Law & Technology Supply Chains

Some Congress members are lobbying the Administration to impose human rights sanctions on Chinese officials and companies responsible for or complicit in abuses against China’s Uighur Muslim minority and other minorities. Two companies named, Dahua Technology and Hikvision, are very large, China-based global firms that produce surveillance products and systems. The bottom line is that the tech industry should take note of the development (even if no sanctions are imposed), as it foreshadows the legal and reputation risk issues they will, without doubt, face in connection with tech-enabled abuses, privacy encroachments, and other conduct by consumers of tech products and services.
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MassPoint Legal and Strategy Advisory PLLC, Sanctions, Tech War, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy

ZTE: Was the Export Ban the Right Penalty?

The sentiments expressed by Senator Rubio and others reflect commercial, competition, policy, and strategic concerns held by business, policy makers, defense and national security officials, and others about China and Chinese firms like ZTE and Huawei. But when raised in the context of and as a justification for a specific legal enforcement action, the sentiments blur the lines between what should primarily be an enforcement based on facts and applicable laws, rather than an instrument for advancing wider policy objectives that are not specifically advanced by the laws applicable to the conduct for which ZTE was penalized. And, while Secretary Ross' stated rationale to impose the harsher penalty to change ZTE's behavior may have been sound, the recommendation of the career professionals with expertise in sanctions and export controls enforcement should, perhaps, have carried the day. Secretary Ross' description of the process leading to the export ban and the mess that has followed it give more reason to ask whether, in the first place, the export ban was the appropriate remedy as a matter of applicable laws and the objectives served by them.
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Academic Espionage, Doing Business in the United States, Foreign Investment in the United States, International Trade Law, Sanctions, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy

U.S.-China Trade and Tech War on Three Fronts

Much of the talk of trade war between the United States and China, and perhaps other countries, has focused on traditional trade measures and counter-measures like tariffs that strike at the core of international trade: most basically, the movement of goods and services across international borders. But there are two additional fronts of a U.S.-China trade war (thus far): intellectual property and the use of U.S. sanctions and other laws to "coerce and deter" economic rivals like China.
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Doing Business in the United States, Foreign Investment in the United States, MassPoint Legal and Strategy Advisory PLLC, National Security Law, Sanctions, Tech War, Technology Export Control, Technology Transfer Regulation, United States China Law and Policy

House Bill “Blocks Bailout” of ZTE After Export Ban

On May 17, the House Appropriations Committee unanimously approved a measure to block the Commerce Department from using appropriated funds to alter the export ban (i.e., the “denial order”) that the agency activated against ZTE on April 15, 2018. The ZTE measure was approved as an amendment to the fiscal year 2019 bill funding the Departments of Commerce and Justice, Science, and Related Agencies (“Commerce Appropriations Bill”), which was approved by the Appropriations Committee on May 17.
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Anti-Corruption, Anti-money laundering, Business Ethics & Conduct, Doing Business in Emerging Markets, Doing Business in the United States, Global Magnitsky Sanctions, International Trade Law, National Security Law, Sanctions, United States China Law and Policy

Trump Administration Targets Chinese Dominance, Corruption in Africa

Notably, in the two pages of the NSS that are devoted to the National Security Strategy in the Africa context, none of Africa’s 54 nations are mentioned, but China is named twice. The NSS notes with concern China’s “expanding . . . economic military presence in Africa, growing from a small investor in the continent two decades ago into Africa’s largest trading partner today.” China’s methods and influence in Africa are described unflatteringly.  “Some Chinese practices,” the NSS states bluntly, “undermine Africa’s long-term development by corrupting elites, dominating extractive industries, and locking countries into unsustainable and opaque debts and commitments.”
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