Unpaid Suspension of Federal Hydrologist Once Accused of Illegal Army Downloads Is Under Review

The National Oceanic and Atmospheric Administration is considering whether to reinstate an employee who last fall was removed from duty for allegedly misusing an Army database.

The implied suspicion was that NOAA hydrologist Xiafen Chen had passed on to Chinese nationals sensitive files on U.S. dams contained in the system.

Federal prosecutors last week dropped charges against her. 

While the Justice Department's criminal case was pending, Chen was suspended without pay, according to her agency.

"In light of the decision by DOJ not to proceed with the case, NOAA is now reviewing this as a personnel matter," an agency official told Nextgov on Friday. "We will have no comment while that process is underway."

It is unknown how long the review process could last. 

The case is an oddity as far as foreign espionage accusations go. 

When Chen was arrested last fall, the charges against her included theft of government property and illegally accessing a U.S. government computer database.

Nowhere did the indictment claim she had been an agent of a foreign government or had broken into a database. 

At the time, some former Justice officials speculated that U.S. authorities did not have the evidence to link inappropriately downloading data to spying.

"All you've got right now is an employee looking at a database that she wasn't supposed to look at it," said Mark Rasch, a previous head of Justice’s Computer Crime Unit. That is "something that happens probably 10,000 times a day in the federal government." 

The insinuation was that she was acting on behalf of the Chinese government, but the assertions were not spelled out, he said.

"The problem is the way they've structured this indictment," Rasch said. 

In January, the Washington Free Beacon reported that, according to a new superseding indictment, Chen and Jiao Yong, an official with China's Ministry of Water Resources, exchanged emails in May 2012. The messages indicated the two met in Beijing that year, and that Chen, a naturalized citizen, would try to provide him with dam-related information.

Chen’s attorneys filed to dismiss the charges of stealing sensitive information because of “vagueness,” adding that the “complete lack of any detail” about the dam data of concern “makes it impossible for the defendant to prepare a defense.”

The Beacon in May 2013 had reported that the same dam registry was hacked earlier that year by Chinese actors. Apprehension abounded that China was planning to attack the U.S. power grid, by disrupting electricity generated through hydroelectric dams, according to the paper. The unauthorized user was not identified. 

Dams listed in the system are ranked by the number of people who would die if critical infrastructure fails, according to the Army. Certain information in the archive is available to the public, such as the size of the dam and spillway width. Restricted fields include the nearest town, distance to that locale, and "downstream hazard potential." Only government personnel are allowed to download data from the site. 

When the case was dismissed, The Wall Street Journal characterized portions of the litigation as indicative of prosecutorial overreach. The situation echoes "a broader national debate about the decades-long growth in the federal criminal-justice system that now includes thousands of laws and regulations carrying potential prison sentences," in which "critics contend that it has become too easy for an innocent miscue to be treated as a felony,” WSJ reported.

Justice’s motion to drop charges against Chen did not come with an explanation, other than that the government chose “to exercise its discretion and discontinue the prosecution.”