BY ROLAND HWANG AND RITA PIN AHRENS
This piece was published in the 30th print volume of the Asian American Policy Review.
More and more botched individual cases have captured the public’s outcry and fueled growing concerns about whether Asian Americans are being unfairly targeted and accused of economic espionage, regardless of US citizenship status.
The Rising Tide of Accusations and Fear
There have already been several sensationalized FBI investigations and arrests of Asian American scientists and researchers from Wen Ho Lee to Sherry Chen, with allegations of trade secrets theft and/or spying for China, alongside cinema-style perp-walks in front of work colleagues or family. A number of these cases have ultimately been dismissed, the charges mysteriously dropped almost as swiftly as they were brought, while others continue unresolved, dealing lasting damage to the careers of the accused. The effect, which may not be fully realized for some time, has already spread beyond those directly involved and their families, raising concerns about the racial profiling of Asian American researchers, and more specifically, of Chinese Americans. These cases have been the subject of “60 Minutes” television exposes, business articles, and social media, all chronicling the phenomenon that has been recently-coined “researching while Asian.”
Data surrounding the US Economic Espionage Act shows an escalating trend. From 1997 to 2009, 17% of defendants indicted under the US Economic Espionage Act had Chinese names, with the rate tripling to 52% from 2009 to 2015,[i] according to independent research published in the Cardozo Law Review. Recent Bloomberg analysis of over 26,000 national security clearance applications for federal contractors found that those with family or financial connections to China were denied Pentagon clearances at the same rate (44%) as applicants with links to all other countries, but during the last decade, China-related denials rose 17%, while those linked to other countries dropped on average by 10%.[ii] Security clearance denials linked to Russia (45%) and Iran (48%) are now well below the denials for links to China (61%).
Undeniably, there are cases and arrests tied to demonstrable behavior that suggests intentional wrongdoing[iii] and attempts at obfuscation by those indicted.[iv] In addition, there are longstanding concerns about foreign interests trying to steal American intellectual, not limited to China. In 2013, the bipartisan Commission on the Theft of American Intellectual Property released a report that estimated the US loses hundreds of billions of dollars each year[v] due to theft of intellectual property.
However, more and more botched individual cases have captured the public’s outcry and fueled growing concerns about whether Asian Americans are being unfairly targeted and accused of economic espionage, regardless of US citizenship status. In 1999, there was the Wen Ho Lee[vi] debacle, a chilling example of media sensationalism and a rushed FBI investigation in which the Taiwanese American scientist was accused by journalists of giving nuclear secrets to China, almost immediately fired from his job at the Los Alamos National Laboratory, and placed in solitary confinement — he later won a settlement from the US government and a number of media outlets involved with his ordeal. In 2015, Sherry Chen,[vii] after sending publicly available information along with the name of a professional colleague to a classmate in China, was reported by that same colleague as a spy, then terminated from her job at the National Weather Service, which refused to reinstate her years after the initial charges were dropped. Also in 2015, FBI agents dramatically arrested Temple University physics professor Xiaoxing Xi[viii] in an early morning raid at his home in front of his family, but the US Department of Justice dropped the case only five months later. More recently, we have the case of Wei Su,[ix] a US Army Intelligence scientist with two decades of service, whose top secret security clearance was inexplicably revoked in 2015 — he retired angry and humiliated after being pressed multiple times on his loyalty to the US, alongside threats of being arrested in front of his family, but was ultimately cleared of any wrongdoing by the Pentagon in December of 2019.
A Focus on Research Collaborations with China and the Consequences
Overall, the globalization of scientific research has reaped enormous benefits for all countries by widening pools of patients with different backgrounds, diets, and exposure to various environments and environmental factors, but something has changed since 2015, and it is a visible sea change. Now there appears to be greater scrutiny of research collaborations between the US and China, especially involving ethnic Chinese researchers. Government actions have often targeted researchers involved in US-China collaborations, or with familial or financial connections to China. Headline-grabbing news about China’s Iron Silk Road or China’s Thousand Talents Program to attract talent back to China suggests the benefits to China achieved through such collaboration. Meanwhile, the treatment of researchers like Chen, Su and Xi has been accompanied by significant changes in American policy toward suspected research theft.
This past year, FBI Director Chris Wray made several public statements suggesting that China is a bigger espionage threat than Russia, laying out the reasons for close scrutiny of those with any affiliation to China. He announced to the Council on Foreign Relations that: The contest is being waged on China’s side, by the “whole of society”, and in response the US needs its own whole of society response. In July 2019, he noted that China’s economic espionage efforts are so difficult because they go beyond the usual “spy versus spy, traditional intelligence operatives… There are a slew of what we call nontraditional collectors. Businessmen, scientists, high-level academics, graduate students. People who are not intelligence officers by profession but who are, for a variety of reasons, working on behalf of the Chinese government.”[x]
Perhaps as a result of the Director Wray’s statements, or the FBI’s prompting, National Institutes of Health (NIH) Director Francis Collins sent out a letter to 1,000 institutions[xi] urging grantees to report any ties to foreign governments, with more detailed letters relating to grant procedural infractions sent to a few dozen institutions. The infractions included improper or insufficient disclosure of personal or professional affiliations to China. The NIH, the biggest public funder of health research and federal health-related grant programs, offers about $5 million per year in US-China collaborations. The impact of these letters was immediate, causing anxiety with the potential for grant funds being rescinded, as well as raising alarm bells about the consequences for being involved in current and future international scientific collaborations.
Universities and research institutions had to choose between two responses to the NIH letters. Does the institution consider protecting its research grant portfolio and dismiss research staff to achieve that first and foremost, or does the institution abide by norms of investigation, deliberation, correction, and in general, supports its research staff? At least a dozen universities, including Yale, Stanford, and UC Berkeley have been supportive of Chinese faculty members and research collaborations, releasing statements that either condemned racial profiling and/or supported an openly collaborative research environment.[xii] Baylor University, faced with its own inquiries from the NIH, became proactive in correcting past disclosure lapses. Other institutions, such as University of Texas’ MD Anderson, which had sister relationships to cancer research labs in China, took a line of action to “protect its intellectual property,” dismissing its entire faculty and staff[xiii] related to the federally-funded project under scrutiny.
Wrapped up in all of the intensified scrutiny on collaborative research is the case of Xifeng Wu, an epidemiologist, naturalized US citizen, and former director of the Center for Public Health and Translational Genomics at MD Anderson Cancer Center. She stepped down from her position in January 2019 after a 3-month investigation into her ties in China. The allegation was that Wu did not disclose all of the names and affiliations of her Chinese collaborators, with whom she had published dozens of research papers. After her resignation, she became dean of Zhejiang University’s School of Public Health in Shanghai in March 2019. Dr. Wu may be the front and center poster child for a resulting research brain drain from the US to China.
Challenges for Researchers and Law Enforcement
Considering the matter involving Xifeng Wu and MD Anderson, what would be good advice to a researcher looking to avoid a similar fate? The answer should be simple. At a C100 event to raise awareness on these issues, attorney Brian Sun told concerned community members: “Don’t be stupid.” But what does that mean? One would think: Don’t cut corners regarding disclosure of academic connections, and funding streams involving collaborations involving China, its educational institutions, and its ministries.
However, with many more of these cases surfacing in local and national news, it is becoming clear that what we are doing, on the law enforcement side and the research institution side, isn’t working well. The status quo is simply not sufficient to meet the needs of balancing concerns around national security and protection of American intellectual property interests within the context of an openly collaborative research environment. It’s clearly not working if researchers are being arrested, only to have the initial charges brought against them dropped entirely not long after their arrests or dismissed without explanation, begging the question of why investigators couldn’t have waited the extra months to a year to make an arrest.
Some of the false positives are produced by an unfortunate mix of heightened scrutiny on US-China relations and affiliations and the recognized need by US law enforcement to better protect American national security and intellectual property interests. However, there are other factors complicating the situation, some of which may be potential areas for exploitation from foreign actors. These include inconsistent guidelines for compliance with federally funded projects, law enforcement officers’ misunderstanding of what may or may not be trade secrets, as well as researchers’ knowledge gaps of disclosure and compliance protocols.
There are multiple weaknesses across federal agencies that may feed this problem and threaten national security if not addressed, as revealed in a staff report to the US Senate Committee on Homeland Security and Governmental Affairs.[xiv] Some of these weaknesses are more easily addressed than others — including the lack of dedicated staff at the National Science Foundation to ensure compliance with NSF grant terms and the absence of a prohibition on NSF-funded researchers participating in foreign talent recruitment programs like China’s Thousand Talents Plan. Other weaknesses will take concerted effort and coordination across a body of institutions at the federal and public sector. These include what amounts to self-regulation and policing, with the burden of compliance and review placed on the research institutions often inconsistently reviewing themselves and their researchers’ disclosures and financial commitments. A further complication and likely source of confusion for these internal self-review processes are the inconsistent guidelines and disclosure requirements across federal grant-making agencies — what may suffice for NSF, for example, would not meet the higher disclosure standards for NIH.
Given the confusing state of play with research collaborations and disclosure requirements, research institutions and law enforcement should avoid any rush to judgement about the nature of any collaboration that is underway between the US and the People’s Republic of China, its agencies, its universities, researchers, and students studying here. While there are legitimate concerns and cases that validated the efforts of law enforcement in this area, there is a palpable sense of fear within Asian American community that law enforcement is overreaching in their investigations of Chinese American researchers. It is important to address this growing concern, as more and more stories have recently come to light of scientists and students erroneously caught in these investigations.
OCA – Asian Pacific American Advocates recommends the following holistic framework for balancing the concerns of the U.S. government to protect American intellectual property and national security interests with the concerns of the American public about racial profiling of researchers with Asian heritage, especially those who are of Chinese descent.
The federal government needs to work in partnership with the private sector to provide clear guidance and support for compliance with disclosure and data protection requirements across federal agencies for recipients of federal funds. A public-private partnership should be created, if one does not already exist, to formalize standard guidelines and protocols to meet national security concerns across federal agencies for institutions and individuals associated with federally-funded sensitive research or projects. Of course, these standards should be differentiated according to the different levels of national security clearance required with those projects or grants. To ensure both compliance and understanding of disclosure requirements, it is also recommended that there are dedicated oversight offices and staff to answer compliance questions in each agency that provides federal grants to external research institutions or individuals.
Research institutions, universities, and corporations should collaborate to provide standardized resources and training for individuals associated with federally-funded projects and research. Resources should include standardized training, materials, and personnel dedicated to conducting the training and answering questions about compliance. The training for individuals should be consistent at all stages of their careers and should begin early and repeated periodically throughout their career, regardless of who is employing them. Required posting of compliance resources online and in the labs for individuals with questions about specific situations and changing compliance rules would close current and future knowledge gaps.
Community-based organizations should work with law enforcement agencies at the local, state, and federal level to share and address ongoing concerns by both community members and law enforcement agents. Having a good working relationship between law enforcement, such as local FBI offices, and trusted community organizations can help mitigate the fears that may result from preliminary inquiries or extensive, ongoing investigations. Essential to this process is a shared understanding of investigation protocols and individual rights, as well as transparency in reporting the number of impacted individuals to the extent that is possible. Consistent communication about corrective actions that can prevent red flags head off investigations will minimize false positives and create efficiencies — by reducing the amount of time law enforcement spends on cases due to unintended or sloppy nondisclosure, thus freeing up time for cases with intentional wrongdoing.
By taking these steps, the US government and research institutions across the country would reaffirm the critical importance of international research collaborations while providing resources and protections to ensure that good actors in these research collaboratives are not inadvertently ensnared in the ongoing efforts to protect American intellectual property and national security secrets. It is in the economic and national security interests of this country to ensure that citizens advancing the future of science and technology are uplifted, empowered, valued, incentivized, and rewarded for their patient and steadfast efforts in what are often lifelong research careers. Acknowledging the concerns of the Asian American community around recent investigations of researchers and making systemic changes that address the mistakes learned from the past will go a long way to reduce inappropriate arrests and prevent “Researching While Asian” from going viral.
Roland Hwang currently serves as the Vice President of Public Affairs for OCA – Asian American Advocates. He was chapter president of OCA Detroit for three years. He is an attorney in immigration law. He teaches Asian American history in the Asian/Pacific Islander American Studies program at the University of Michigan. He served for 27 years as an Assistant Attorney General for the State of Michigan. He serves on the Michigan Advisory Committee to the US Commission on Civil Rights. He is a former hearing referee for the Michigan Department of Civil Rights. Mr. Hwang received a Bachelor’s degree in Mechanical Engineering and an MBA from University of Michigan and a Juris Doctor and Master of Laws from Wayne State University Law School.
Rita Pin Ahrens is the Executive Director of OCA – Asian Pacific American Advocates. Rita’s passion for social justice stems from her lived experience as a Khmer-American refugee, her involvement with the International Campaign to Ban Landmines while a college student at Yale University, and her experience observing inequities as a public school teacher. Prior to OCA, Rita oversaw research and policy projects for APIA Scholars, the Southeast Asia Resource Action Center, the Campaign for High School Equity, and the National Board for Professional Teaching Standards. Throughout her career, Rita has advocated for policies that improve the social and economic well-being of underserved communities. Outside the office, Rita’s interests include learning and performing classical Khmer dance, oil painting, drawing, gardening, and writing poetry.
[i] Andrew Chongseh Kim, “Prosecuting Chinese ‘Spies’: An Empirical Analysis of the Economic Espionage Act,” Cordoza Law Review 40, no. 2 (2019): 749-822, http://cardozolawreview.com/prosecuting-chinese-spies-an-empirical-analysis-of-the-economic-espionage-act/.
[ii] Peter Waldman, “Mistrust and the Hunt for Spies Among Chinese Americans,” Bloomberg Businessweek, 10 December 2019, https://www.bloomberg.com/news/features/2019-12-10/the-u-s-government-s-mistrust-of-chinese-americans.
[iii] Rob Portman and Tom Carper, Threats to the U.S. Research Enterprise: China’s Talent Recruitment Plans, (Washington, D.C.: Staff report to the Permanent Subcommittee on Investigations in the US Senate, 2019), https://www.hsgac.senate.gov/imo/media/doc/2019-11-18%20PSI%20Staff%20Report%20-%20China’s%20Talent%20Recruitment%20Plans.pdf.
[iv] Jim Sciutto, Mariano Castillo and Barbara Starr, “Alleged spy arrested boarding flight to mainland China,” CNN, 12 April 2016, https://www.cnn.com/2016/04/12/politics/navy-officer-arrested-espionage-china-flight/index.html.
[v] Dennis C. Blair and Jon M. Huntsman, Jr., The IP Commission Report: The Report on the Commission on the Theft of American Intellectual Property, (United States of America: The National Bureau of Asian Research, 2013), http://www.ipcommission.org/report/ip_commission_report_052213.pdf.
[vi] Lowen Liu, “Just the Wrong Amount of American,” Slate, 11 September 2016, https://slate.com/news-and-politics/2016/09/the-case-of-scientist-wen-ho-lee-and-chinese-americans-under-suspicion-for-espionage.html.
[vii] WCPO staff, “Ohio scientist accused of spying sues government after charges dropped,” WCPO Cinncinnati, 22 January 2020, https://www.wcpo.com/news/state/state-ohio/ohio-scientist-accused-of-spying-sues-after-charges-dropped.
[ix] Peter Waldman, “Mistrust and the Hunt for Spies Among Chinese Americans,” Bloomberg Businessweek, 10 December 2019, https://www.bloomberg.com/news/features/2019-12-10/the-u-s-government-s-mistrust-of-chinese-americans.
[x] Mark Moore, “FBI Director Christopher Wray says China is America’s biggest espionage threat,” New York Post, 23 July 2019, https://nypost.com/2019/07/23/christopher-wray-says-china-is-a-bigger-espionage-threat-than-russia/.
[xi] Jocelyn Kaiser and David Malakoff, “NIH investigating whether U.S. scientists are sharing ideas with foreign governments,” ScienceMag.org, 27 August 2018, https://www.sciencemag.org/news/2018/08/nih-investigating-whether-us-scientists-are-sharing-ideas-foreign-governments.
[xii] Jodi Xu Klein, “US academics condemn ‘racial profiling’ of Chinese students and scholars over spying fears,” South China Morning Post, 12 August 2019, https://www.scmp.com/news/china/diplomacy/article/3022413/us-academics-condemn-racial-profiling-chinese-students-and.
[xiii] Todd Ackerman, “MD Anderson ousts 3 scientists over concerns about Chinese conflicts of interest,” Houston Chronicle, 19 April 2019, https://www.houstonchronicle.com/news/houston-texas/houston/article/MD-Anderson-fires-3-scientists-over-concerns-13780570.php
[xiv] Rob Portman and Tom Carper, Threats to the U.S. Research Enterprise: China’s Talent Recruitment Plans, (Washington, D.C.: Staff report to the Permanent Subcommittee on Investigations in the US Senate, 2019), https://www.hsgac.senate.gov/imo/media/doc/2019-11-18%20PSI%20Staff%20Report%20-%20China’s%20Talent%20Recruitment%20Plans.pdf