September 24, 2021

U.S. attorneys warn of upcoming ‘spike’ in prosecutions related to China ties

Andrew Lelling, U.S. attorney for the district of Massachusetts, explains recent prosecutions under the Department of Justice’s China Initiative at a 6 February event in Washington, D.C. To his left is Jay Town, U.S. attorney for the northern district of Alabama.

Center for Strategic and International Studies

Researchers in academia and industry who work with Chinese institutions should expect a “spike” in prosecutions this year as a result of a U.S. government initiative to stop economic espionage, say federal prosecutors leading the effort. And although they say the criminal cases could harm potentially useful U.S. collaborations with China, the prosecutors believe they will help deter future problems.

“Some will complain that [the prosecutions] might have a chilling effect on collaboration with the Chinese. The answer to that is—for good and bad reasons—yes, it will,” said Andrew Lelling, U.S. attorney for the district of Massachusetts, at an event yesterday in Washington, D.C. “China has launched a massive nationwide effort to pilfer U.S. technology and know-how and transfer it to China for its own uses, so unfortunately this kind of response is needed.”

Lelling was just one panelist appearing before a packed house at the Center for Strategic and International Studies for an event featuring Attorney General William Barr and FBI Director Christopher Wray. The discussion, which included representatives from academia and industry, focused on the Department of Justice’s (DOJ’s) China Initiative, which aims to disrupt what U.S. officials say is a systematic effort by the Chinese government to obtain advanced technology with economic and military value.

The effort’s latest target—and one of the highest profile to date—is Harvard University chemistry chair Charles Lieber, who on 28 January was charged with lying to the Department of Defense and FBI about his involvement in a Chinese talent program. Two Chinese students studying in the United States were charged separately on counts of smuggling and failure to register as a foreign agent. Such prosecutions will intensify in 2020, Lelling said, and diminish only when “industry and academia become more sensitized to the problem.”

The China Initiative, launched in November 2018 by then–Attorney General Jeff Sessions, has so far led to more than 40 arrests on an array of charges, according to an FBI presentation supported by DOJ documents. About 1000 investigations are open, Wray said, “in every industry and sector,” including academia.

Those cases are starting to unsettle researchers who think, often with good reason, that espionage fears are overblown, said Mary Sue Coleman, president of the Association of American Universities, a group of top research universities in the United States and Canada. “When they see a department chair at Harvard being called to account and who may go to jail … that has done more to help us [convince them] than anything abstract that we could possibly have done,” she said.

In response to the increased scrutiny of foreign collaborations, colleges and universities are ramping up efforts to educate faculty about potential threats, said Doug Girod, chancellor of the University of Kansas. They’re also expanding efforts to monitor foreign travel, funding sources, and outside commitments, including part-time appointments in overseas schools and labs. Because the potential conflicts of interest—and commitment of time—are so varied, and because there hasn’t been a single set of guidelines from law enforcement and funding agencies, mounting a response has been tough. “I may have everybody disclose everything,” Girod said. “That doesn’t mean that I know what to do with it.”

Lelling said such education and disclosure efforts are just what government officials hope will deter future problems. “That’s 80% of the battle,” he said. “Maybe next time an academic does not lie about his connections to a Chinese program, or maybe next time an academic thinks twice or thinks harder about collaborations with a Chinese institution and what the motivations of the institution might be.”

Businesses have also been rattled. Recent high-profile cases linked to the initiative include those of an ex-Monsanto researcher charged with stealing software to optimize crop output and a scientist who pled guilty to stealing unnamed trade secrets from his former employer, Phillips 66. But when asked to appear on a panel at the event about economic espionage, multiple business executives declined.

“Why isn’t a CEO up on stage with us today?” asked John Carlin, a former assistant attorney general for national security under the Obama administration, who organizers asked to fill in at the last minute. The U.S. government has plenty of sticks for prosecuting bad actors, he said, but “we lack the carrot” to convince most businesses to step forward publicly. The “fear of retaliation” is just too great, he said, whether in the form of lawsuits, Chinese government sanctions, or continued intellectual property theft.

Four U.S. attorneys tasked with leading the China Initiative, including Lelling, said to expect more outreach efforts—including a national conference later this year—and more prosecutions of both individuals and companies. In addition, Lelling said, prosecutors are coming up with “creative ways” to charge agents suspected of intimidating and monitoring Chinese nationals working and studying on U.S. campuses.

Though no representatives of the Chinese research or business communities were on stage, multiple speakers emphasized that the effort wasn’t launched to single out or prosecute individuals of Chinese descent. “To be clear, this is not about the Chinese people as a whole, and it sure as heck is not about Chinese Americans as a group,” Wray said. “But it is about the Chinese government and the Chinese Communist Party.”

To clarify rules for researchers and businesses, the prosecutors said they would like to see the federal government settle on a single set of reporting guidelines from grantmaking bodies, including the National Institutes of Health, National Science Foundation, and the departments of energy and defense. They also floated a potentially controversial new requirement: having researchers with foreign collaborations register those arrangements with a single government body, much as lobbyists who work for overseas governments have to register as “foreign agents.” Such a change, said Jay Town, U.S. attorney for the northern district of Alabama, would “give some real teeth” to prosecutors’ efforts.

Coleman said the federal government’s concerns about Chinese actions are warranted, but warned that equal efforts should be made to maintain the open and competitive nature of scientific collaboration that has given the United States a “powerful” advantage since the 1950s. “Kudos to the federal government for bringing these groups together to help us really know what the threat is, [and] develop the armor to protect ourselves from the threat, but not kill what has made us so powerful for the past 75 years.”

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