By Anton Louthan*
(FPRI) — In a speech on Chinese threats to U.S. national security on January 31, the Director of the Federal Bureau of Investigation Christopher Wray emphasized ongoing attempts by the People’s Republic of China to spy on American companies and steal their research. Emphasizing the scale of the PRC’s criminal activities, Wray explained that the FBI has opened “over 2,000 [investigations] … focused on the Chinese government trying to steal our information or technology” and that the bureau is “constantly opening new cases to counter [Chinese] intelligence operations about every twelve hours or so.” Although not mentioned by name, many, if not all, of these cases were tied to a campaign known as the China Initiative launched by the Department of Justice in 2018 to prosecute cases of Chinese economic espionage and theft of intellectual property. However, within a month of Director Wray’s speech, the Assistant Attorney General for National Security Matthew Olson came out to announce the end of the China Initiative, leading some to cheer and others to criticize the sudden change in policy.
Of all the institutions, industries, and individuals caught up in the China Initiative, the cases involving researchers and professors at U.S. universities have dominated media attention and illuminated the real or imaginary threat China poses to the U.S. research institutions. At the end of December of last year, Harvard’s Charles Lieber, a pioneering American chemist, was convicted for both lying to federal authorities about his connection to the PRC’s Thousand Talents Program, a state-run talent recruitment program, and failing to disclose his earnings from it. Meanwhile, the head of the Massachusetts Institute of Technology’s Department of Mechanical Engineering, Gang Chen, a naturalized U.S. Citizen, saw his charges dropped by the U.S. government on January 20, 2022 after having been arrested a year prior for allegedly failing to disclose connections with Chinese research institutions. Both of these high-profile cases brought the China Initiative to the forefront of media attention and highlighted the difficulty in parsing the robust ties between U.S.-based researchers and Chinese institutions and their potential threats, premeditated or happenstance, to American security.
The abrupt end to the initiative in February suggested its deficits both as a poorly defined campaign and its propensity for racial profiling.  At the same time, the initiative showcased the continued importance of bolstering research security in America’s academic institutions. Representing the United States’ global position as the leader of scientific research and discovery, American research universities have increasingly found themselves in an awkward position with the deterioration in relations between Beijing and Washington. Caught between championing their values of openness and transparency and the judicial microscope of the DOJ, American universities face numerous obstacles in figuring out how they should respond to competition between the two countries and the potential for IP theft.
Moving forward, the Biden administration and American universities will need to recalibrate the balance between the values and praxis of American research with the country’s own national security interests. In sum, both universities and the government must learn from the failures of the China Initiative to guarantee that its pursuit to uncover CCP attempts at economic espionage do not weaken the very system that has attracted global talent to the United States and has driven American scientific and technological success.
Problems with the China Initiative
According to the DOJ’s own description, the goal of the initiative was to “identify and prosecute those engaged in trade theft, hacking, and economic espionage.” Given the backdrop of souring U.S.-China relations, concern over China’s increasing capabilities in high tech industries, and findings of IP theft totaling $600 million annually, the initiative was set to be the signature campaign of the DOJ. The continuation of the initiative under the Biden presidency for over a year demonstrated continuity in the Trump and Biden administrations’ shared national security focus on combatting what they identify as criminal efforts by the CCP to undermine the United States’ technological advantage. However, as the DOJ’s first campaign to target threats from a specific country, the initiative attracted criticism for racially profiling individuals of Chinese heritage and for its lack of success in uncovering cases of espionage and IP theft.
As far as American universities are concerned, the FBI released a report in 2019, titled “China: the Risk to Academia,” warning university administrators that Beijing uses a “whole-of-society approach… from academic collaboration to economic espionage to develop and maintain a strategic economic edge.” Universities are particularly vulnerable, according to the document, because China can exploit their “vital culture of collaboration and openness.” Indeed, multiple professors and researchers had been prosecuted under the auspices of the China Initiative. Yet given the sheer number of cases that FBI Director Wray claimed the FBI to be investigating and the FBI’s assessment of risks at American universities, surprisingly few cases have been made public. According to the most comprehensive database of China Initiative cases compiled by journalists from the MIT Technology Review, there had been at least nineteen known cases implicating professors and researchers employed by U.S. universities.
Of those nineteen cases, fourteen of them relate to individuals failing to disclose their affiliations with Chinese institutions. The initiative’s focus on non-disclosure violations illustrated one of the key problems of the China Initiative. There was a clear mismatch between the severity of the crimes that the DOJ and FBI alleged publicly and the charges which the DOJ prosecuted. Given the China Initiative’s initial emphasis and rhetoric on crimes related to economic espionage and IP theft, only two of the university cases dealt with theft of trade secrets of which one was dismissed. The majority of charges against university employees had to do with either wire fraud, federal program fraud, or visa fraud. While these charges are undoubtedly serious, they were not clearly linked to issues of national security which the China Initiative had set out to protect. Even if the strategy of the DOJ and FBI was to target less serious cases related to research integrity in order to expose more significant crimes, their success at prosecuting these relatively minor crimes was questionable. Of these nineteen known cases, only six of the defendants have either pleaded guilty or been found guilty. Furthermore, nine of the defendants either saw their charges dropped or were acquitted by a jury. To put these numbers in perspective, approximately ninety percent of defendants in federal crimes plead guilty according to statistics compiled by the Pew Research Center. The fact that already forty-seven percent of cases (with five cases still pending) ended without a conviction suggests that the FBI has been unsuccessful in gathering evidence, and in one extreme example, an FBI agent even admitted to using false evidence.
Considering the competition between the U.S. and China over sensitive technologies, a surprising number of cases involving universities had little to do with breakthrough technologies that could alter the economic landscape of the twenty-first century. Six of the known cases had defendants who specialize in biomedical technology. While their research might be on the cutting edge of their respective fields, they do not represent the U.S.’s primary concerns in its competition with China over the fields of artificial intelligence, quantum computing, and semiconductor technology. Of the six defendants who either pled or were found guilty, only Charles Lieber of Harvard and Simon Ang of the University of Arkansas researched topics related to those key industries.
Although much of the motive behind the policy held merit, the China Initiative could never escape the risk of racially profiling people of Chinese origin. Only two defendants in the university cases were not of Chinese descent. While the university cases only represent a minority of publicly known China Initiative cases, the proportion of defendants of Chinese origin in the university cases corresponded with the roughly eighty-eight percent of total China Initiative cases that have defendants of Chinese heritage. As legal scholar Margaret Lewis argued in her critique of the China Initiative, “using ‘China’ as the glue connecting cases prosecuted under the Initiative’s umbrella creates an overinclusive conception of the threat and attaches a criminal taint to entities that possess ‘China-ness’.”
Both the profiling and legal pursuit of researchers with ties or links to China has led to a chilling effect within the scientific community. Researchers like Gang Chen speak of a “chilling effect” rippling through scientists who have collaborated with Chinese institutions in the past. Granted that neither participation in Chinese talent programs nor collaboration with Chinese institutions constitutes a crime, researchers now fear to collaborate with Chinese scientific institutions. While the impact on scientific discovery and its consequences remain to be determined, an unintended repercussion of the initiative has been a decline in the perception of America’s attractiveness as a place for conducting scientific research, as shown by a 2021 survey from the American Physical Society (APS).
End of the China Initiative and Improving U.S. American Research Security
After coming under pressure from civil society groups and prominent scientists, the DOJ finally announced it was dropping the country-specific focus of the initiative on February 23. Anticipating the critiques of racial profiling, Assistant Attorney General Olson explained that “by grouping cases under the China Initiative rubric, [the DOJ] helped give rise to a harmful perception that the department applies a lower standard to investigate and prosecute criminal conduct related to [China].” Going forward, the DOJ plans to take a “broader approach” to dealing with all criminal activity that threatens U.S. national and economic security including threats from Russia, Iran, and North Korea. While the DOJ will continue to investigate all pending cases previously grouped under the China Initiative, more specific information regarding the framework under which ongoing cases will be reshuffled remains unclear.
As far as the changes relate to U.S. research institutions, Olson acknowledged one of the recurring critiques of the initiative that research integrity cases did not have a clear link to national security. He hinted that criminal prosecution is not necessarily warranted for cases involving non-disclosure violations, stating that considerations concerning “evidence and intent and materiality” of the charges will determine “whether criminal prosecution is warranted or whether civil or administrative remedies are more appropriate.” On the legislative front, Congress is mulling over final versions of two bills, the America Competes Act and the United States Innovation and Competition Act, which contain sections banning researchers who participate in foreign talent programs from receiving government grants. To help clarify confusion over which institutions scientists cannot collaborate with, the America Competes Act will publish a list of Chinese scientific institutions that are affiliated with the People’s Liberation Army. At the end of March, a team of GOP lawmakers also introduced a new bill they referred to as the “Protect America’s Innovation and Economic Security from CCP Act.” If enacted, this bill would essentially reestablish the China Initiative under a new name (the “CCP Initiative”) and remove the DOJ’s discretion to prioritize cases or to combine the initiative with other DOJ initiatives working to counter nation-state threats.
In January, shortly before the disbanding of the China Initiative, the National Science and Technology Council’s Subcommittee on Research Security released a new report to provide further guidance related to recurring problems of non-disclosure. As stated in the report, the goals are to “protect America’s [research] security and openness… and to ensure that policies do not fuel xenophobia or prejudice.” The report creates a framework for standardizing disclosure requirements across all agencies for individuals applying for grants and mandates researchers to disclose all previous collaboration and participation with foreign institutions.
While these measures should help clarify confusion during the grant application process, disclosure guidelines do not apply to researchers who are not applying for government-funded grants. University administrators and U.S. government officials should also clarify guidelines for collaboration with foreign entities when researchers are not recipients of government grants. Additionally, as many think tank and government reports recommend, the U.S. should promote dialogue between research institutions, industry, and the government as a way to better understand and combat problems related to research security. Hosting informal and formal dialogue between researchers, government officials, industry leaders, and university departments is crucial for assessing potential research security threats. However, much more work must be done to actively define what constitutes acceptable forms of collaboration and to provide clearer guidelines on the types of institutions with whom researchers can work. By proactively demonstrating and shaping the forms of scientific collaboration that are beneficial for the U.S., rather than acting in a reactive and punitive manner, policymakers can greatly reduce the confusion of scientists who currently or have previously worked with institutions in China.
Of broader significance, the U.S. government must also weigh the benefits and costs of restricting scientific research collaboration. While limiting collaboration might reduce the potential for IP theft, these moves could also harm American universities if fewer Chinese students are permitted to work, live, and study in the U.S. It is equally important for government agencies and American universities to recognize that Chinese espionage and intelligence gathering often happens through non-traditional methods and in legal grey zones. Given the dual desires of the U.S. remaining at the cutting edge of research and protecting the research done on its fertile grounds, Washington must calculate what forms of collaboration are acceptable and what are not. As collaboration with China on scientific research could yield dividends to both American universities and the nation as a whole, the difficult task of the government in the years to come will be determining what degree of decoupling in science and technology research is reasonable or necessary and whether it is worth the potential costs.
 There was no definitive list nor definition of what constitutes a China Initiative case. Researchers for the MIT technology review created a public database of cases that are known to fall under the purview of the China Initiative. https://airtable.com/shrQhBkuDPvEvig4h/tblbHcFMmohIPsVVJ?backgroundColor=teal&viewControls=on
The views expressed in this article are those of the author alone and do not necessarily reflect the position of the Foreign Policy Research Institute, a non-partisan organization that seeks to publish well-argued, policy-oriented articles on American foreign policy and national security priorities.
*About the author: Anton Louthan is a Fellow and Research Assistant in the Eurasia program at the Foreign Policy Research Institute.
Source: This article was published by FPRI