Differences on Cybertheft Complicate China Talks

And to no one’s surprise, the Chinese had an answer ready: that the publication of secret documents showing the extent of American surveillance of Chinese universities and other institutions undercuts the Obama administration’s case.

That friction, American officials conceded in private, underscores how difficult it will be for the United States to make progress on what President Obama and his top aides have said is now a central issue between two countries whose economies are intertwined and whose militaries are in competition.

And at a time when the Chinese economy is showing signs that it is headed into a period of slower growth, the administration’s hopes of persuading Chinese leaders to crack down on the daily barrage of theft and espionage over the Internet — considered crucial to keep China competitive — is likely to be even more difficult.

“We both will benefit from an open, secure, reliable Internet,” Mr. Biden said at the opening of the talks, the Strategic and Economic Dialogue, an annual effort to bring together top Chinese and American cabinet and subcabinet officials on a range of problems. “Outright cyber-enabling theft that U.S. companies are experiencing now must be viewed as out of bounds and needs to stop.”

Mr. Biden was making the same point that Mr. Obama repeated in recent weeks, including during a meeting with China’s new president, Xi Jingping, in California. To the Americans, China’s cybertheft — often directed by units of the People’s Liberation Army — is different, and far more corrosive, than standard government espionage.

An American official who was sent out to brief reporters after the first day of talks said that when it came to the theft of intellectual property — including the designs of commercial products and military aircraft — “we don’t do it, and we don’t think any country should do it.”

China has always viewed the issue differently, seeing far less of a distinction involving what it regards as issues of economic and military security.

“For many Chinese, it is bizarre that how Washington can continue to pose as the biggest cyberespionage victim and demand others behave well,” China Daily, a government-influenced publication, wrote before the meeting, “after former U.S. intelligence contractor Edward Snowden revealed that U.S. spy agencies hacked deep into China and other countries’ computer networks, including those of government, military, research, educational and business organizations.”

It concluded that “by dividing cyberespionage into ‘bad’ and ‘good’ activities, Washington is trying to dictate the rules for global cyberdomain, which is a public space.”

American and Chinese cyberexperts met Monday for the first time in a working group intended to address the issue. That alone was progress: when the United States asked Chinese officials to discuss cybertheft, cyberespionage and cybersecurity at a meeting several years ago, there was almost no give and take. But new attention focused on the activities of the Chinese military, notably Unit 61398 of the People’s Liberation Army, has made it harder for Mr. Xi’s government to ignore the United States’ protests.

Mr. Snowden’s revelations may be a gift to the Chinese, because they shift the focus from China’s covert activities to Washington’s. And even American scholars say the Chinese have a good argument. “It is not true that ‘unwritten rules’ prohibit economic espionage,” said Jack Goldsmith, a Harvard law professor and cyberexpert who served in the Bush administration. “Economic espionage is expressly prohibited by U.S. domestic law but is not prohibited by international law, written or unwritten, and it is widely practiced.”

The most fruitful part of the conversations, American officials indicated in a briefing late on Wednesday, dealt with North Korea and climate change, two areas where the governments have been moving into alignment.

Court Rulings Complicate Discrimination Suits For Employees

In two big employment law cases, the U.S. Supreme Court has made it harder for employees to bring discrimination suits about workplace harassment and retaliation.

The two 5-to-4 rulings frustrated Justice Ruth Bader Ginsburg so much that she took the unusual step of reading a dissent from the bench addressing both cases. Her dissent apparently frustrated Justice Samuel Alito so much that he rolled his eyes as Ginsburg spoke.

Under previous Court rulings, the Justices have held that an employer is automatically liable under the 1964 Civil Rights Act for the actions of supervisors who harass the workers under their control. If, however, the harasser is a co-worker and not a supervisor, the company is only liable if it was negligent in responding to a complaint. In Monday's case, the question was who qualifies as a supervisor.

In the case before the court, involving a catering service at a university, the alleged victim of the harassment, backed by the U.S. Equal Employment Opportunity Commission, argued that a person is a supervisor if she has authority to control someone else's daily activities and evaluate performance. But the court rejected that "nebulous" definition and instead defined a supervisor as someone who has the power to take "tangible employment action" against the victim.

Writing for the 5-4 majority, Justice Samuel Alito said tangible action means making a significant change in employment status like hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.

"The ability to direct another employee's tasks is simply not sufficient," Alito wrote. "Employees with such powers are certainly capable of creating intolerable work environments, but so are many other co-workers."

In a second employment case, the Court made it more difficult for employees to prevail when charging illegal retaliation.

The case involved a doctor who claimed his employer blocked a job opportunity after he made complaints about his supervisor's racially discriminatory comments.

The Civil Rights Act prohibits employers from retaliating against workers for reporting employment discrimination. In a 1989 case, the Court ruled that the plaintiff has to show that discrimination was just one of the employer's motives for making the employment decision. But Justice Anthony Kennedy, writing for the Court, rejected that standard, instead imposing a stricter rule.

By a 5-to-4 vote, the Court said that those claiming to be the victims of illegal retaliation must show that the only reason for the action against them was that they reported some discriminatory action.

In summarizing the views of the four dissenters in both cases, Justice Ginsburg said that the workplace decisions diluted the strength of the federal anti-discrimination law in ways Congress could not have intended.

As she spoke, Justice Alito, sitting next to her, rolled his eyes.

In the first case, she said the supervisor/coworker distinction makes no sense. A worker can walk away from a coworker or tell him to "buzz off," she noted, whereas that is much harder to do "given the control rein held by an in-charge supervisor. She gave as examples, four situations in which "in-charge" employees — not considered supervisors under the Court's standards — harassed other employees verbally, sexually and using race-based epithets.

"The Court embraces a position that relieves scores of employers of responsibility for behavior of the supervisors they employ," Ginsburg wrote. "Inevitably, the Court's definition of supervisor will hinder efforts to stamp out discrimination in the workplace."

Ginsburg called upon Congress to do as it has before and correct the majority's restrictive construction of Title VII.