US Opposes Chinese Company's Bid to Gain Access to Certain Docs in UFLPA Entity List Case
The U.S. opposed exporter Camel Group's motion to unredact part of the record in the company's case against its placement on the Uyghur Forced Labor Prevention Act Entity List, arguing on July 10 that disclosure of information deemed confidential "would substantially harm the Government's" law enforcement efforts in applying the UFLPA. The government told the Court of International Trade it has a "strong interest in protecting the law enforcement sensitive information," while Camel has "no compelling argument as to why disclosure to the public, or to Camel, as opposed to confidential disclosure, is necessary" (Camel Group Co. v. United States, CIT # 25-00022).
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Camel Group is a large manufacturing company, producing over 400 different products. The company established two affiliates -- Camel Group Xinjiang Renewable Resources Co. and Camel Group Xinjiang Storage Battery Co. -- in the Xinjiang Uyghur Autonomous Region (XUAR) in 2015 and 2017, though the company said neither of its Xinjiang affiliates ships products to the U.S.
The exporter challenged its addition to the UFLPA Entity List in January, arguing that the Forced Labor Enforcement Task Force "utterly disregarded, ignored and trampled" its due process rights in a "flawed and poorly executed process" (see 2501210052). The company then asked the trade court to undertake in camera review of the record and order the U.S. to unredact and re-designate the record.
The U.S. filed two versions of the record, one labeled "Confidential," which has information only accessible by Camel Group's attorneys, and one marked "Camel Confidential," which certain Camel Group representatives can access. The government said the "vast majority" of the record was made available to Camel Group, save for personally identifiable information of government employees.
The documents subject to Camel Group's motion are all "open-source documents over which the" Chinese government "exerts control," the U.S. said in opposing the exporter's motion. The government has a "strong interest in protecting law enforcement sensitive information," the brief said, telling the court that it only needs to assess whether an "attorneys'-eyes-only designation" appropriately balances the government's and Camel's competing interests.
"We believe that it does," the U.S. said, citing a string of cases standing for the proposition that "courts often order attorneys’-eyes-only production of law enforcement sensitive information even when the information is not protected by the law enforcement privilege."
The government invoked the only other case in which the court considered evidentiary access challenges in an UFLPA Entity List case, Ninestar v. U.S. In a decision in that case, the trade court upheld a "Confidential" designation on the basis that disclosure of the open-source documents that "would be susceptible to demands by the Chinese government pursuant to China’s 2021 Data Security Law and its 2021 Anti-Foreign Sanctions Law" would "hamper the FLETF’s investigations into the use of forced labor."
To support its claim that the documents are needed for legitimate law-enforcement ends, the U.S. cited a declaration from DHS official Cynthia Echeverria, who said disclosure of the eight contested documents "would reveal the FLETF’s sources, methods, and significant insights into how it conducts investigations.” Disclosure of the documents "would provide a roadmap to companies and the PRC on how to continue to engage in forced labor" and evade FLETF investigations, the brief said.
Echeverria added that disclosure of the documents to a Chinese company would be "particularly problematic" due to China's 2021 Data Security Law and Anti-Foreign Sanctions Law. The data security law gives the Chinese government significant control over the collection and use of data in China, and the sanctions law bars actions which aid in the implementation of sanctions by foreign governments, the U.S. noted. Thus, these laws would allow the Chinese government to access the contested documents if shared with Camel Group, the government argued.
The U.S. said Camel Group's challenges to the government's defense of the documents fall short. While the exporter said the government's designations are "inconsistent," the U.S. said no such inconsistences exist, and, even if there were any, "it would not warrant disclosure of the identified documents to Plaintiff."
And while Camel Group challenged the Echeverria declaration as "flawed," the government said Camel Group misunderstands its analysis. The declaration clearly explains how Chinese open-source documents "are vulnerable to the PRC government's control of information."
Camel Group also argued that the government failed to articulate any "demonstrable harm or impairment" to FLETF's law enforcement efforts that disclosure of the documents would present. The exporter relied on the Ninestar decision for the claim that agencies "routinely rely on public and open-source information."
However, this claim ignores the fact that the Ninestar decision "read in its entirety, is highly instructive as to whether disclosure, in this case, would be harmful to the FLETF’s law enforcement efforts," the brief said. In Ninestar, Judge Gary Katzmann dealt with "nearly identical confidentiality designations" and held that disclosure of the documents would reveal FLETF's "deliberative process and judgment." The same result should follow here, the brief said.
Despite its "inflammatory language," Camel Group offers no compelling interest to override the government's reason for keeping the documents away from the exporter's eyes, the U.S. said. "Camel’s counsel has access to all of the documents in their entirety and can make arguments in support of Camel’s challenge in this record-review case," and even if the attorneys don't have such information, "a significant amount of information was provided to Camel," the brief said.
The government additionally argued that while Camel Group claims due process protections in this suit, the foreign company actually has no constitutional rights. Camel Group has no "property or presence" in the U.S. that would give it "any more rights than it was already afforded," and it hasn't identified how the "Confidential" designation would violate any of its rights, if it had them, the brief said. Also, there "appears to be no authority compelling a level of disclosure to the client greater than what is provided here."