Connor Smith
In February 2022, the Department of Justice (“DOJ”) ended the “China Initiative,” an effort launched in November 2018 by then-Attorney General Jeff Sessions to identify and prosecute Chinese spies who had purportedly infiltrated American research institutions—both public and private.[1] The China Initiative sought to combat industrial espionage and theft of intellectual property, though most cases actually concerned “research integrity”—prosecuting academics for omitting Chinese ties on grant and tenure applications.[2] The three-year program has been characterized as a “racialized moral panic,” marred by FBI misconduct and selective prosecution.[3] Hundreds of academics from dozens of leading institutions had called on Attorney General Merrick Garland to end the program, alleging that the China Initiative encouraged racial profiling and made some of the world’s brightest talent think twice before coming to the United States.[4]
Theft of American intellectual property by China is undoubtedly a salient issue—the FBI estimates that Chinese theft of American intellectual property costs the American economy between $225 and $600 billion annually.[5] Nevertheless, the China Initiative not only failed to address intellectual property theft in a meaningful way but created a host of other problems. Initially, the China Initiative did focus on industrial espionage .[6] However, beginning in 2020, the Initiative turned its attention to research integrity cases.[7] Though the China Initiative’s research integrity cases did root out some culpable omissions of ties to Chinese talent programs,[8] most of these prosecutions seized on errors made while attempting to comply with opaque disclosure rules.[9] Some of these cases resulted in spectacular failures for the DOJ. Such was the case against Gang Chen, an MIT professor of engineering who was prosecuted for failing to disclose Chinese ties, until the DOJ dropped the charges against him after they discovered that such disclosures were not required by law .[10] These prosecutions served no national security interests. Instead, they fomented fear among Chinese scientists and researchers working in the United States and harmed falsely accused scientists. With dozens of prosecutions stalled out ,[11] it was clear by early 2022 that the China Initiative had failed.
Rather than truly shuttering the China Initiative, however, Assistant Attorney General (“AAG”) for National Security Matthew Olsen reaffirmed that the National Security Division (“NSD”) “will continue to prioritize and aggressively counter the actions of the PRC government that harm our people and our institutions.”[12] AAG Olsen indicated that the NSD would proceed with China Initiative prosecutions under stricter oversight.[13] Even if Chinese industrial espionage within American universities and companies were a serious problem—which the China Initiative has proven it is not—these prosecutions will fail to confront the overall problem of intellectual property theft. As the most malign actors, including Chinese corporations and state-sanctioned hackers, enjoy the protection of the Chinese government, criminal prosecutions in the United States are likely to be futile.[14] By focusing on the low-hanging fruit—such as Chinese-American professors, who naturally will have ties to Mainland China, for misstating Chinese employment on grant and tenure applications—the DOJ will deter top talent from around the world from working and studying in the United States out of fear that American law enforcement officials will unfairly target them based on ethnicity. What would be the cost to the U.S. economy of such a loss?
[1] Josh Gerstein, DOJ Shuts Down China-Focused Anti-Espionage Program, Politico (Feb. 23, 2022), https://www.politico.com/news/2022/02/23/doj-shuts-down-china-focused-anti-espionage-program-00011065.
[2] See Eileen Guo et al., The US Crackdown on Chinese Economic Espionage Is a Mess. We Have the Data to Show It, MIT Tech. Rev. (Dec. 2, 2021), https://www.technologyreview.com/2021/12/02/1040656/china-initative-us-justice-department/; Gideon Lewis-Kraus, Have Chinese Spies Infiltrated American Campuses?, New Yorker (Mar. 21, 2022), https://www.newyorker.com/magazine/2022/03/21/have-chinese-spies-infiltrated-american-campuses.
[3] See Joseph Choi, Federal Agents Admit to Falsely Accusing Chinese Professor of Being a Spy, Hill (Jun. 14, 2021), https://thehill.com/regulation/court-battles/558345-federal-agents-admit-to-falsely-accusing-chinese-professor-of-being/; see Lewis-Kraus, supra note 2.
[4] Letter from faculty members of Stanford Univ., Stanford Univ., to Merrick B. Garland, U.S. Att’y Gen. Merrick B. Garland (Sept. 8, 20201), https://sites.google.com/view/winds-of-freedom.
[5] Nicole Sganga, Chinese Hackers Took Trillions in Intellectual Property From About 30 Multinational Companies, CBS News (May 4, 2022), https://www.cbsnews.com/news/chinese-hackers-took-trillions-in-intellectual-property-from-about-30-multinational-companies/.
[6] Guo, supra note 2.
[7] See Id.
[8] Press Release, Dep’t of Just. U.S. Att’y Off. Dist. of Mass., Harvard University Professor Convicted of Making False Statements and Tax Offenses (Dec. 21, 2021), https://www.justice.gov/usao-ma/pr/harvard-university-professor-convicted-making-false-statements-and-tax-offenses.
[9] See Guo, supra note 2; see also Lewis-Kraus, supra note 3.
[10] Lewis-Kraus, supra note 2.
[11] See Guo, supra note 2.
[12] George E. Pence, While China Initiative May Have Ended, Foreign Influence Remains DOJ Priority, Akin Gump (Mar. 28, 2022), https://www.akingump.com/en/news-insights/while-china-initiative-may-have-ended-foreign-influence-remains-doj-enforcement-priority.html.
[13] Matthew Olsen, U.S. Assistant Att’y Gen., Assistant Attorney General Matthew Olsen Delivers Remarks on Countering Nation-State Threats (Feb. 23, 2022), https://www.justice.gov/opa/speech/assistant-attorney-general-matthew-olsen-delivers-remarks-countering-nation-state-threats.
[14] See Sganga, supra note 8.