You wrote about the idea that we are immersed in a “new cold war” between United States and China. How important is industrial espionage in this new cold war?
Over the past few years, the Trump administration has taken an increasingly hawkish tone on China. Since the outbreak of COVID-19, that has only intensified. But even before the outbreak, concern over industrial espionage was the big flashpoint for the relationship and was one of the ostensible drivers for Trump’s trade war with China.
The focus on industrial espionage and intellectual property (IP) theft dates back to around 10 years ago. At the beginning of the Obama administration, the Justice Department began to focus on cases involving IP theft, grant fraud, and technology in China more broadly. One reason for that was that relations between the two countries were worsening and there was a recognition among the U.S. business leaders that they were not going to make significant inroads in China by waiting it out. A number of groups, including business groups, started to push for the U.S. government to take a stand against industrial espionage.
The legal framework to prosecute people has been in place since 1996, when the Economic Espionage Act was signed into law. Using both that and other statutes, prosecutors have pursued prosecutions involving China and Chinese scientists on a widespread scale. In the past two years, those have increased significantly. The Justice Department now has something called the China Initiative, covering cases of IP theft and academic fraud, and FBI director Christopher Wray, recently said that the bureau has over 1,000 active investigations involving China in all 50 states.
You wrote about multiple Chinese scientists who were accused of economic espionage or related crimes without much concrete evidence and who later went on to work for institutions in China. Do you think America’s counterintelligence strategy is actually encouraging Chinese-American scientists to return home, thus producing precisely the opposite effects desired by the US government?
Several people have moved to China either because they felt personally targeted or because there was this atmosphere of fear in their institution. There have also been cases where a scientist or an entrepreneur was arrested and later turned out to be innocent, and the charges against them were dropped. But in the meantime, their lives were ruined. In that sense, the strategy of going after scientists tied to China can backfire. The United States is an extremely innovative country and has some of the leading labs in the world. The goal of these prosecutions is supposed to be to protect the IP produced by American companies and the research environment in the country. If that’s the goal and you end up driving people back to China, it is very counterproductive.
How do you distinguish between private actors motivated by greed and state-sponsored actors seeking critical technology? Such a distinction is not always made in the coverage on this issue. Does this distinction actually matter?
Under the Economic Espionage Act, the penalties are more severe if you can prove that someone is connected to the Chinese government and involved in government-sponsored theft. For prosecutors, there is a big incentive to prove that. The issue is that in China government ties can be murky. And in most cases, it isn’t so much that the Chinese government directly asks a company to go out and steal technology – by asking, to use the example from my book, a seed company to steal corn from the United States. Instead, it’s much more implicit. Private Chinese companies know that if they do manage to steal technology there will be few repercussions. The narrative that has emerged here in the United States tends to be more simplistic, suggesting that companies are responding to direct guidance from the Chinese government, when in fact the situation is much more complicated.
How is the case of Robert Mo, who in fact was stealing trade secrets for the Chinese agricultural company DBN, going to affect U.S. counterintelligence efforts targeting China-connected activities? Or does it reaffirm the counterintelligence methods the U.S. is already using?
The FBI leadership still cites that as a successful case, even though the FBI set out to arrest six people and only got one, while minimally affecting the operations of DBN. The case also showed that the FBI will go to incredible lengths and will be extremely persistent in pursuing suspected IP theft. As I detailed in my book, they spent two years bugging vehicles, running aerial surveillance on the suspects, and collecting evidence using a FISA warrant, which is typically reserved for extreme national security threats. Both in this case and others, a remarkable amount of resources and time are spent on prosecuting people.
Do you think the criminal prosecution of people like Robert Mo is effective in deterring industrial espionage? Do you think there are better methods?
The deterrent effect of the Robert Mo case is unclear because the company that he works for, DBN, suffered very few repercussions. Even after his prosecution, DBN remained in business. They may even have some of the stolen seed lines in production.
There is no question that these cases have a huge impact on the individuals who are charged, but if the broader goal is to deter theft by the corporations that the individuals work for, it is not at all clear that they achieve that goal. Someone I interviewed compared it to going after the street-level dealers in the War on Drugs. If you’re only targeting the guys on the streets without going after the cartels in any significant way, it is not really a deterrent.
The Trump administration has adopted a number of measures that are targeted more towards companies. They have strengthened the review process for CFIUS, the Committee for Foreign Investment in the United States, for example. There are other measures under consideration now. What is clear is that the prosecution of individuals is not only ineffective but has a secondary effect of increasing suspicion of the FBI and DOJ. Such cases create a chilling atmosphere among ethnic Chinese scientists in the United States.
Your book outlined the numerous ways that U.S. counterintelligence towards China, both in the case of Robert Mo and in the past, has been flawed. Have there been successful cases of prosecution?
There have been a number of successful prosecutions. The problem is that going after economic espionage has become a major priority of the FBI and the DOJ, and prosecutors know that they are going to be rewarded for bringing cases involving China and IP theft. Any time something becomes a priority, you get some spurious investigations. We saw this with the War on Terror after 9/11. There is some concern that the same sort of thing is happening with the cases involving China now.
Do you believe that the targeting of Chinese scientists and researchers by the United States might discourage normal collaboration between scientists in the two countries?
That’s an interesting question because we’re at this moment now, in the midst of a global pandemic, where international collaboration is absolutely essential. Better collaboration in the early days of the outbreak would have meant knowing a lot more about what was happening in China. Instead, the Trump administration had severely cut the number of public health experts both globally and on the ground in China. As a result, we did not have information that would have helped us prepare for the crisis. Collaboration is also important for developing a vaccine and treatments. Instead, what we have is an environment of fear, finger-pointing, and mistrust.
There is a long history of scientific collaboration even among adversaries. Even in the Cold War, the U.S. and the Soviet Union worked together on certain areas of science. Going back to the early 1970s, after President Nixon’s historic visit to China, one of the first areas of collaboration that was restored was science. More recently, even people who work in sensitive areas, like energy, have been encouraged to have seminars with their Chinese counterparts. Those exchanges can be used for technology transfer, but they also serve a very useful purpose in keeping each side informed of what the other is doing. Scientific collaboration is one of those forces that goes back decades and has been critical to understanding the capacity of the other side and to furthering science and research more generally. Most research areas are not a zero-sum game. For example, if you are developing drugs, it helps to have data from different populations and to be able to test the drugs on an Asian population as well as on an American one. These are things that will be lost as the two countries continue to move apart.