When catching spies, it is tempting to cast a broad net despite risk of making false accusations. Recently, the Justice Department has done just that. In an effort to crack down on what it depicts as an intellectual espionage campaign by China, it has revved up its prosecutions for scientific espionage and intellectual property theft against Asian-American citizens—from the notable case of Wen Ho Lee at the Los Alamos National Laboratory in 1999, to Gang Chen at MIT this January.
It’s a familiar cycle, yet somehow shocking each time: immigrant and naturalized scientists are accused of disloyalty. Many are preemptively imprisoned and stripped of professional positions. Accusations of espionage are often found to be erroneous and ungrounded in science, then dropped. Afterwards, targeted scientists have raised plausible claims of racial profiling under the Fourth and Fourteenth Amendments, at least one currently pending in federal court.
What’s driving this harsh crackdown? One answer is high economic stakes. Intellectual property sits at the heart of the U.S. economy: IP-intensive industries account for 28 million jobs and $6.6 trillion in value. Unsurprisingly, the United States reacts aggressively to foreign threats to its source of wealth. The Obama administration reinvigorated the Economic Espionage Act. The Trump administration began the China Initiative to fight what it portrayed as an epidemic of intellectual theft. The Biden administration has already made high-profile arrests since taking office. Politicians on both sides of the aisle struggle to avoid appearing “weak on China.” It’s a persuasively simple narrative: stop foreign spies from stealing America’s intellectual property.
But there’s more to it. Rhetoric surrounding these prosecutions often ignores clear exculpatory evidence, and capitalizes on the perception of Asian Americans as perpetual foreigners. The sentiment traces back to the 1790 Naturalization Act (forbidding Asians from holding U.S. citizenship) and 1882 Chinese Exclusion Act (prohibiting all Chinese immigration, initially for ten years but later extended indefinitely). And it extends to the current wave of anti-Asian crimes tied the COVID-19 pandemic. While overall hate crimes decreased by 7 percent during 2020, anti-Asian hate crimes increased by 149 percent. Recent news cycles are studded with violence: a two-year old toddler stabbed in a Texas grocery store, a woman doused with acid on her front porch, a man knifed in New York, a couple beaten with a rock in a sock in Seattle, a mother and her eight-year old daughter stabbed to death while asleep in their California home, six women gunned down in Atlanta mass shooting.
Although China presents a legitimate national security concern, there is evidence that the United States is haphazardly conflating nationality with ethnicity. Representative Ted Lieu states that erroneous espionage prosecutions are “the latest example of our government’s unfortunate inability to distinguish between American citizens and foreign adversaries.” One study finds that the proportion of defendants charged under the Economic Espionage Act who were Chinese or Chinese American rose from 17 percent to 52 percent between 2009 and 2015. More crucial is the rate of false positives: defendants of Chinese ethnicity have been unjustly accused at twice the rate of non-Chinese defendants.
The side effects of such a crude policy do more harm than good. Having spent my childhood in an idyllic Pennsylvanian university town, I witnessed firsthand the community’s reaction when a family friend—a Chinese American physics professor—was erroneously accused, arrested and hustled away at gunpoint. Months later, the Justice Department realized it had entirely misinterpreted the situation: it had accused him of sending schematics for sophisticated “pocket heater” technology to a colleague in China, but experts later clarified that the confiscated blueprints did not depict a pocket heater at all. The charges were dropped. But the professional, financial, and reputational damage was done. The Asian-American community at the university buzzed with apprehension that no one was safe from unfounded accusations.
The current approach sweeps broadly and blindly. Not only do overeager prosecutions subject U.S. citizens to potential civil rights violations, but this climate causes a “brain drain” of intellectual capital. According to the World Intellectual Property Organization, immigrants make up a significant proportion of U.S.-based inventors and have won a third of the Nobel Prizes given to Americans. But now, many immigrant scientists and inventors are choosing to leave the United States for other countries on the promise of higher pay, prestigious positions, looser regulatory schemes, and—most notedly—no federal prosecutions for legitimate research activity. As renowned LA litigator Brian Sun explains, “If you’re criminally prosecuted and disgraced in this way and prosecuted . . . it’s an academic death penalty: what’re you left to do but to go back to China?”
The ultimate effect is rather perverse. As Princeton University molecular biologist Yibin Kang notes, “What’s happening is doing a great service for the Chinese government. If you turn this into a toxic environment, you’re actually helping the Chinese government to then recruit back to China.”
Altogether, it makes for a Pyrrhic victory. The United States stifles its own innovation ecosystem by discouraging international partnerships, obstructing access to nonclassified federally funded research, renouncing immigrant intellectual capital, and rejecting investments in innovations from certain other countries. On the international stage, it compromises its diplomatic standing by failing to recognize the diverse legal needs of other countries and nonetheless forcing harmonization of patent law.
But these harms have gone largely unrecognized. In 2018, the National Institutes of Health—which controls the main source of funding for many academic labs—instructed around 10,000 U.S. research institutions to continue cracking down. Sun terms these “‘gotcha’ cases:” disproportionately heavy criminal penalties for mere administrative missteps. A number of institutions, such as the MD Anderson Cancer Center, subsequently fired or terminated many of its Asian-American researchers.
The myopia is astounding. Tensions and violence are escalating each day, in courtrooms and on city streets. But at least in the scientific community, prosecutors, legislators, agencies, and directors of research institutions have the power to slow down and consider the hard facts of each case. Jumping to conclusory prosecutions and firings does no good for anyone.
By treating Asian-American citizens as perpetual foreigners and prosecuting without nuance, the United States will continue down a self-destructive path, harming only its own citizens, innovation, and economy.