Criminal Justice & the Rule of Law Foreign Relations & International Law

Beyond the China Initiative

Karman Lucero
Monday, February 22, 2021, 9:01 AM

While the Department of Justice’s China Initiative was created to combat intellectual property theft and protect U.S. critical infrastructure and society, the initiative appears to be increasing discrimination and causing harm without materially stopping or changing China’s behavior.

Attorney General William Barr speaks at the Department of Justice's China Initiative Conference on Feb. 6, 2020. (Source: Department of Justice)

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In late 2018, the U.S. Department of Justice launched the China Initiative. The initiative’s stated goals include identifying and expanding law enforcement’s capacity to investigate and prosecute cases involving the theft of trade secrets and other intellectual property (IP); educating colleges and universities about “potential threats to academic freedom and open discourse from influence efforts”; and protecting U.S. critical infrastructure against external threats, which can include foreign direct investment, supply chain vulnerabilities, and foreign agents seeking to influence the American public and policymakers without proper registration.

There is growing evidence that the People’s Republic of China’s (PRC) party-state institutions are incentivizing and recruiting people at home and abroad to acquire IP. As of 2017, this effort included obtaining upward of $600 billion worth of IP in contravention of U.S. laws. U.S. government officials involved in the China Initiative have also emphasized the importance of not discriminating against Asian Americans or individuals with mere ties to China. They have stressed law enforcement’s need to cooperate with universities, companies and other institutions to combat the risks of PRC government interference. Under the initiative, the Department of Justice has already brought a number of indictments against individuals from several universities.

However, there is also evidence that current efforts have not realized the initiative’s broader goals both of protecting U.S. IP and of not discriminating against Asian Americans. In fact, the China Initiative may be causing harm without materially stopping or changing the PRC party-state’s behavior. Thus far, evidence suggests that indictments and prosecutions have not slowed the PRC’s efforts to obtain IP from organizations in the U.S. Also, in the wake of growing incidents of prejudice against Asians during the coronavirus pandemic and language utilized by the Department of Justice that makes Chinese names or associations with China a “threat by association[,]” mere language stating that the China Initiative does not allow for discrimination against individuals with Chinese ethnicity or proximity to China does not alleviate fears of potential discrimination.

While the department should not stop prosecuting illegal behavior, there is a better way to accomplish the China Initiative’s stated goals. Below are a number of suggestions concerning how the U.S. public and private sectors can leverage law enforcement and other institutions to more effectively combat PRC party-state influence and theft. A more effective strategy would strengthen U.S. values at home and abroad, avoid unnecessary stigmatization of ethnically Chinese people and people who otherwise have connections to China, and maintain an open society and economy. Updated guidance would also include rebranding the “China Initiative” and incorporating its efforts into a broader, whole-of-government strategy; expanding cooperation with government and nongovernmental institutions in a way that increases the agency of these organizations; encouraging vigilance and transparency in university-based initiatives; and increasing the Department of Justice’s expertise vis-a-vis China.

Rebranding of the “China Initiative”

The name “China Initiative” confuses some of the tactics and goals of combating nefarious PRC behavior. The U.S. government’s current framing of the issue as an indictment of the entire country of China feeds into the Chinese Communist Party’s (CCP’s) own narratives about the unquestionable strength of the party-state, that the U.S. unfairly targets China, and the racist notion that any person of Chinese ethnicity should have loyalty to the CCP. The party-state perceives any ethnically Chinese person to be under their jurisdiction and expects every institution affiliated with China to serve its interests. Despite the CCP’s best efforts, the reality is more complicated than the party’s perceived omnipresence. The U.S. government should not expand this narrative through its law enforcement tactics. It is in the national interest of the U.S. to push back against the party-state’s attempts to portray and mandate as an agent of the CCP any individual or entity with a modicum of “Chinese-ness” (something that blends nationality, loyalty and ethnicity in counterproductive ways). The U.S. should identify areas in which ethnicity does not equate with working on behalf of the PRC party-state and should develop mechanisms that empower individuals, companies and institutions to protect their independence and capacity for free expression. Stigmatizing “Chinese-ness” and targeting individuals and institutions merely for their ethnicity or for having friends and family in China not only serves CCP narratives but also violates American values and harms U.S. interests by scaring away talent. While the U.S. government should recognize the extent of nefarious activity instigated by the PRC party-state, it must also make sure that it employs methods that are effective and that do not violate due process.

Instead of the “China Initiative,” the incoming Biden administration should consider creating a broader, whole-of-government initiative dedicated to protecting democratic values and security—a “21st Century Democracy Initiative.” Like the China Initiative, it should involve law enforcement paying greater attention to real threats from the PRC but without focusing on the Chinese-ness of individuals. Such an initiative could also focus on other U.S. values, such as human rights. For example, it could involve coordinating the departments of State and Commerce to develop more effective mechanisms for condemning, sanctioning and preventing human rights abuses in Xinjiang. The U.S. can connect this growing initiative with other domestic and foreign policy goals, such as the creation of an alliance framework for democratic technology policy—for example, “Democracy 10” or “Technology 10” alliances of democratic countries with similar values that would benefit from a set of policy goals. Actions could include sharing information concerning technology transfer, counterintelligence best practices, and best practices for capacity building in industry, while developing additional guidelines for cross-border research integrity.

Intergovernmental cooperation would likely help the federal government to coordinate different tools, such as visa restrictions, export controls, funding rules and law enforcement actions. The Obama administration’s export control reform initiative’s goal included building “high walls around a smaller yard” by focusing on protecting “crown jewels.” This “small yard, high fence” set of goals is intimately connected to developing a successful China Initiative strategy to protect IP and critical infrastructure.

Cooperation With Nongovernmental Agencies

Intellectual property is created by a diverse array of institutions, including universities and private companies. The U.S. government does not have the capacity or the authority to surveil all of these entities all the time. To respond to the distributed nature of IP theft and other PRC party-state interference, the government should increase its cooperation with other institutions and develop a culture of vigilance that does not hinder openness. The power structure of the PRC and the CCP blend the relationships among party, state and society in ways that present challenges for U.S. law enforcement. The simple practice of banning cooperation with entities affiliated with China will not suffice.

Historically, the U.S. government has been able to cooperate with universities and the private sector to combat adversaries without having to rely on coercion. However, in former Attorney General William Barr’s words: “Unfortunately, the cooperative bonds and sense of purpose we were able to muster in the past are harder to call on today.” This is likely because, as Margaret Lewis argues, despite rhetoric seeking cooperation, the China Initiative’s current framing appears to be undermining—rather than building—trust in nongovernmental institutions. Regardless of the underlying causes of current divisions, the government is resorting to an increased use of coercive tools and language that will likely exacerbate concerns of universities. Instead, law enforcement should make more efforts to engage with universities and other institutions on their terms, listen to stakeholder concerns, and support and build on existing collaborative efforts.

For example, the National Science Foundation’s JASON report articulates principles that recognize the seriousness of IP theft while maintaining an open research environment. To support these recommendations, the government should provide funding and create a forum for sharing best practices that allows universities and other institutions to engage with their peers and government partners. Together, this group of academic, professional and government experts could debate and identify an evidence-based description of the scale and scope of problems posed by foreign funding and influence in research. Instead of a murky fear of funding or “influence” from “China,” such a group could concretely target negative behaviors and how they are harmful, such as by identifying examples in which cooperation was traced back to a hostile foreign military, cooperation was used to persecute a group of people for their ethnicity, or university resources or personnel contributed, willingly or unwittingly, to a project or institution that acts against U.S. law or a particular university’s values. The report also recommends that the National Science Foundation and other institutions further engage with the community of foreign researchers in the United States to enlist them in the effort to foster openness and transparency in fundamental research. The National Institutes of Health Advisory Committee to the Director also produced a report in 2018 that offers best practices and suggestions for maintaining the security of peer review processes and collaborative research. The Department of Justice should learn more about these practices and increase its cooperation with both the National Science Foundation and the National Institutes of Health.

Universities are fundamental partners when it comes to combating IP theft and foreign influence. While grant-receiving institutions are already involved in a great deal of self-regulation when it comes to grants and ethical requirements, the Department of Justice should work with them to develop and implement clearer rules of engagement with foreign governments. This would include greater transparency in the receipts of foreign funding to prevent the sort of opacity that allows for unaccountable influence and shady funding deals.The U.S. government can work to expand the capacity of these institutions to address concerns related to coordinated IP theft and other kinds of foreign interference. The government should also require that memoranda of understanding (MOUs) and funding from China and other foreign nations be made public so that members of the university community can investigate the nature and detail of any funding programs or cooperative agreements. The American Council on Education recommends that any MOUs contain a clause stating that “if any activities carried out under this agreement are deemed to violate either partner’s standards of academic freedom, academic integrity, or academic rigor, the agreement may be terminated without notice or penalty.”

To clarify, developing successful strategies that uphold U.S. values requires more than just the Department of Justice. Other government agencies, such as the National Science Foundation, and organizations outside the government must play a fundamental role. While law enforcement can raise awareness and prosecute criminals when necessary, most of the institution building that needs to happen to make universities and other institutions more secure and robust will have to come from within. The optimal solution would be the development of a broader culture of thoughtfulness in which academic and private-sector individuals and organizations are more aware of problematic engagements but that does not come at the expense of open research and international cooperation. The Department of Justice is not in a position to unilaterally impose such a nuanced solution. It is not entirely clear that punishing individuals for making false statements on research grants or stealing trade secrets will stop the PRC from trying to do so. Discouraging illegal behavior is certainly important, but it is in the United States’s interest to do more than that. More thoughtful university and private-sector institutions that take the threat seriously are necessary. The Biden administration should work in conjunction with university partners to foster a culture of openness and vigilance.

The distributed nature of IP theft is in some ways similar to cybersecurity—the government cannot do everything itself. The problem requires various institutions, companies and individuals—, the “nodes” of the network—, to collaborate and build norms for greater security. The Department of Justice could learn from the model of cybersecurity alliances, including the government’s own Cybersecurity and Infrastructure Security Agency.

Private- sector companies have also created their own cybersecurity networks to share intelligence and technical data. The government should encourage and facilitate the creation of IP protection alliances for private- sector companies and universities. Instead of collaborating to enhance cybersecurity, these organizations could share information, and best practices and otherwise collaborate. Such an endeavor does not need to focus exclusively on China as the threat against cybersecurity and IP will likely grow. The PRC presents a unique challenge at the moment, but U.S. institutions should be preparing for a more dynamic set of threats going forward.

University Initiatives

Intellectual property theft and improper influence by the PRC party-state are both distributed problems—while there are certainly overlapping characteristics, each university has its own institutions, individuals and unique dynamics. A distributed problem requires a distributed solution. Instead of relying on the coercive elements inherent in the China Initiative, the Biden administration should encourage universities to be more vigilant and transparent when it comes to engaging with foreign governments and accepting foreign donations. In that vein, the U.S. government can and should alter the tone of the China Initiative, while universities should correspondingly shift their culture and principles around research. Principles to guide this endeavor include the following:

  • Universities should know their partners. When cooperating with foreign government agencies or companies, universities should have a general understanding of what those entities do and whether or not their behavior supports or goes against university values. For example, news reports in early 2019 revealed that a geneticist at Yale University collected genetic information that was likely used to assist China’s Ministry of Public Security in its persecution of Uighur people. The Chinese government’s treatment of Uighurs had been reported extensively in the news. Even if the individual geneticist was not familiar with China’s actions, Yale certainly had the capacity to be aware of the Ministry of Public Security’s treatment of Uighurs. Going forward, the Biden administration, via the Department of Justice, the Department of Education or the Department of Commerce, could provide a database of foreign government agencies and companies that could raise red flags for universities interested in cooperating with them. Universities should also take action themselves. For example, university administrations could set up faculty-led boards, modeled after ethics review boards that, instead of reviewing projects for medically related ethics concerns, dedicate themselves to providing university entities and individuals with the information and tools they need to understand the implications of partnering with any foreign entity. For instance, at Yale, there are a number of individuals with expertise regarding Chinese government agencies and other institutions who could have advised the geneticist on how the Ministry of State Security might abuse the genetic information of Uighurs.
  • Universities should know their funders and insulate themselves from improper influence. As with partnerships, universities should have a general awareness of their funders’ actions and their motivations for funding research. More importantly, universities should structure funding agreements in such a way as to insulate the outcomes of research, which should be objective, from the potential desires and prejudices of the funders. Both the source of funds and funding agreements should be transparent. Removing the opacity of closed-door deals would go a long way toward ensuring that such exchanges are genuine academic exchanges rather than mere covers for more nefarious behavior.
  • Universities should institute a broader culture of transparency. Administrators should encourage norms of transparency when it comes to academic engagements and contracts more generally. This problem is not unique to China. A 2020 Department of Education report indicates that colleges and universities across the United States failed to disclose $6.5 billion in foreign funding and resources in violation of the Higher Education Act. This is a serious problem—the lack of reporting effectively permits nefarious behavior by intermixing it with productive engagements and otherwise letting it go undetected. The Biden administration should at least signal that such failures on the part of universities to comply with the law will not be tolerated. Ultimately, however, it is up to university administrations to develop a general culture of transparency and the mechanisms needed to support it.

In addition to fostering greater transparency, the Hoover Institution recommends focusing on “reciprocity in the pursuit of a productive relationship between China and the United States.” In other words, cooperation and funding agreements should include requirements that grant U.S. institutions and individuals greater access to China and Chinese society to match the level of openness and access that researchers and organizations from China have in the U.S. Another Hoover report recommends that universities and other entities within the broader research community embrace a “proactive” risk assessment informed by the principles of operational security (OPSEC). These suggestions place a great deal of emphasis on security, which, while helpful in certain contexts, might be less appropriate in others. Aside from an OPSEC framework, university administrators could create an “engagement review board,” composed of volunteers within the community to help other researchers and organizations within the university understand the broader context of their potential engagements. Such an entity would focus less on administrative coercion and more on developing understanding. This could balance security concerns while maintaining the open environments that allow American universities to flourish. These engagement review boards would be based on the principle that the greatest defenders of university cultures and integrity are often members of the respective university communities.

A number of universities have already instituted mechanisms and procedures that support transparency. For example, Purdue University and Texas A&M University have established clear policies requiring transparency and disclosures. George Washington University has set up a relationship with its Confucius Institute, organizations affiliated with the Chinese government that have faced scrutiny. GW’s relationship requires that the institute be focused solely on Chinese language instruction. Universities should ensure that such rules are well understood and enforced. Organizations such as the Association of American Universities and the Association of Public and Land-grant Universities have developed a list of best practices and recommendations to maintain openness, resist undue interference and combat theft. As this problem is not limited to American universities, the U.S. should also work with its allies that are interested in maintaining open research environments and protecting academic freedom. For example, the Department of Justice could reach out to and coordinate with law enforcement in other democracies that are grappling with the same nuanced problems of combating IP theft and inappropriate influence. Universities that develop best practices can share their experiences with academic institutions both across the United States and abroad.

China-Specific Expertise and Tactics

One of the stated goals of the China Initiative is “coordinated training” for universities and other knowledge producers. While this could be valuable, universities and other organizations are less likely to want to cooperate with the Department of Justice or other government agencies if there is a perception of racial targeting, stereotyping or a lack of respect for university values. Instead, the department and other agencies should develop the expertise needed to understand the specific mechanisms by which the PRC recruits assets, coerces individuals, or otherwise seeks to obtain IP and influence U.S. politics. This requires developing a greater understanding of how the Chinese government operates and taking advantage of the vast, existing expertise on China-related issues produced in universities, private companies and other nongovernmental institutions. Greater cooperation with China experts is necessary to fulfill the goals of the China Initiative.

Since the PRC party-state blends relationships and obfuscates its coercive authority over different sectors of society, the U.S. government’s targeting of entities with formal government names or links to the Chinese government is not sufficient. However, it is also inappropriate and inaccurate to assume that every Chinese company or individual wants to be or is an agent of the party-state. Just because the CCP leadership would like to be an omnipresent, imposing entity does not mean that it always, or even regularly, is. The goals of the party-state do not automatically translate into destiny for the subjects of its machinations.

U.S. government actors have repeatedly stated that while they consider the PRC party-state to be a rival, if not an adversary, they do not view the Chinese people as such. The government should ensure that it has the expertise to differentiate between the two and develop a more parsed understanding of how it can increase the agency of the Chinese people, while developing mechanisms to combat the strategies of the PRC. On this note, the government should actively encourage engagement with Chinese individuals and institutions, both because engagement is important and because U.S. students’ interest in China is generally declining. It is in the long-term interests of the U.S. to have a wide array of students with a broad spectrum of expertise related to China. As Columbia University President Lee Bollinger argues, the government should not be “paranoid” or suspicious regarding students from China. Rather, it should identify and target patterns of PRC party-state behavior. Criminal law in the U.S. system is based on individual actions, rather than on associations or characteristics. For reasons of due process as well as practical considerations, the government cannot “criminalize” associations with China; it can only go after people. In addition to targeting nefarious actors, U.S. law enforcement and other institutions should consider ways that it can protect individuals in the U.S. who are threatened directly or indirectly (such as individuals whose family members living abroad are threatened). For example, the Department of Justice should continue to prosecute individuals who are spying on ethnic communities in the U.S. for the PRC. Universities can take steps to protect students’ and faculties’ free speech and other rights by encouraging students to share concerns about risks and to take active steps, such as using pseudonyms in class so that students might be able to avoid prosecution when they return to the PRC.

The dynamics of the PRC’s strategy present a unique conundrum for law enforcement. As FBI Director Christopher Wray has described, the party-state’s multitudinous actions combine to form a complex, diverse and “multi-layered” threat. Such a threat requires a nuanced, sophisticated response founded on a deeper understanding of how the PRC party-state operates. To gain this knowledge, law enforcement might want to reconsider what kinds of experience and individuals it finds both valuable and suspicious. While the general perception is that being too close to “China” can raise suspicions about individuals, it is exactly that closeness with the PRC that could help the government develop a greater understanding of the Chinese system. For example, students who spend a lot of time in China studying different aspects of Chinese society might pose heightened security risks, but they are also much more likely to have the kind of nuanced, detailed expertise that the law enforcement and intelligence communities need to develop more sophisticated understandings of the PRC government and Chinese society. This nuanced understanding of the threat can be attained only by working with individuals who have a more intimate understanding of Chinese society and the mechanisms and workings of the PRC party-state.

Intelligence and law enforcement agencies should also invest in greater open-source intelligence capabilities and networks. Emily Weinstein of Georgetown’s Center for Security and Emerging Technology has suggested that the PRC leaves a number of potentially sensitive documents out in the open because language barriers serve as a kind of barrier to access and understanding. Open-source information has been key to media and academic investigations into what is happening in Xinjiang and is a prime example of how important open-source information can be. Just as the private sector leads in innovation, nongovernmental entities are increasingly the drivers for, maintainers of, and gatekeepers to the nation’s critical infrastructure and intellectual property, as well as to the nuanced expertise regarding China and how the party-state operates. While changing the norms around what constitutes “security” and “suspicion” will likely take time, more immediate steps that law enforcement and intelligence agencies can take include simply reaching out to experts outside of the intelligence community within the private sector and academia.

Instead of focusing on a murky and mercurial threat of “China,” the government should focus more specifically on how the PRC party-state incentivizes or coerces individuals and institutions to do its bidding. Law enforcement can then target those specific mechanisms and weaken the PRC’s capacity to leverage them going forward. While the threat from the PRC party-state is multifaceted and complex, it is not omnipotent. Even though the PRC promotes the perception of an all-powerful super state, the U.S. should work to dispel this narrative and develop mechanisms that protect individuals and institutions from nefarious coercion. Legal penalties are not the only tool available and are not even the most effective.

For example, the U.S. government can enforce greater transparency regarding foreign contacts, foreign funds, and how institutions comply with foreign rules and laws. The PRC has leveraged Chinese professional associations and “party committees” within companies to surreptitiously advance its interests. A broad network of recruiting strategies is centered around the United Front organization, a set of individuals and institutions that are transparently or clandestinely influenced by the CCP to advance its interests. According to research conducted by the Australian Strategic Policy Institute, the PRC also relies on some 600 “recruitment stations” across the world. Requiring institutions that work with these organizations, such as universities, to be as transparent as possible regarding sources of funding would help combat the PRC party-state’s tendency to obfuscate connections.

The U.S. government could also encourage or require transparency regarding how universities and private companies comply with foreign laws. Currently, the PRC can rely on party committees embedded in private companies and similar person-to-person communications that obfuscate the Chinese government’s role in decision-making. Transparency requirements regarding how entities comply with Chinese law would weaken the effectiveness of this obfuscation; it would also help the U.S. government understand how the party-state works to get private companies and individuals to do its bidding.

Lastly, the government should develop clearer privacy and data protection rules that all companies operating in the U.S., domestic and foreign, have to follow. Companies with ties to the PRC, such as GTCOM, rely on loose data protection and vague legal spaces to legally collect intelligence from U.S. data markets. Comprehensive data and privacy protection laws would help close these loopholes.

While the China Initiative addresses a very real threat, there are a number of ways it could be improved and changed to address challenges posed by the PRC while simultaneously improving the resilience and capacity of U.S. institutions. Going forward, the China Initiative should evolve into a broader, more open project that focuses less on coercion and punishment and more on cooperation and institution-building. Many of the problems identified by the China Initiative are deeper than the party-state. A more nuanced, thoughtful and inclusive approach would not only help the U.S. combat nefarious action but also improve the robustness of many of the institutions that are so fundamental to democracy.

Karman Lucero is currently a Fellow at the Paul Tsai China Center at Yale Law School where he works on issues related to the intersections of technology, law, and US-China relations and other issues. Before joining the Center, he worked at the Data & Society Research Institute on its Intelligence and Autonomy project, conducting research on the impact of artificial intelligence on law and society. Previously, he worked for Microsoft’s US Government Affairs Office, where he focused on issues related to artificial intelligence law and policy, telecom law and policy, and criminal justice reform. He received a J.D. from Columbia Law School, where he was Editor-In-Chief of the Columbia Journal of Asian Law. He earned a Bachelor's degree in history from Columbia University.

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