When trying to catch spies, it is tempting to cast a broad net despite the risk of making false accusations. Recently the U.S. Department of Justice 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 prosecution of Asian-American citizens for scientific espionage and intellectual-property theft—from the notable case of Wen Ho Lee of Los Alamos National Laboratory in 1999 to Gang Chen of the Massachusetts Institute of Technology this past January.
The cycle is familiar yet somehow shocking every time: Immigrant or 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 and are then dropped. Targeted scientists have raised plausible claims of racial profiling under the Fourth and Fourteenth Amendments, and at least one such case is currently pending in federal court.
What is driving this harsh crackdown? One answer is high economic stakes. Intellectual capital sits at the heart of the U.S. economy: an analysis of data from 2014 showed that industries relying on intellectual property directly accounted for 28 million jobs and $6.6 trillion in value. Unsurprisingly, the U.S. reacts aggressively to foreign threats to its source of wealth. And there have been real threats tied to the Chinese government—for instance, inducements offered by the Thousand Talents recruitment program, the Equifax data breach of consumers' personal information and the SolarWinds hack of U.S. government data. Because of long-standing concerns, the Obama administration heightened penalties under 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. Politicians on both sides of the aisle struggle to avoid appearing “weak on China.” It is a persuasively simple narrative: stop foreign spies from stealing America's intellectual property.
But there is more to it. Too often prosecutions are mistargeted, and rhetoric ignores clear exculpatory evidence, capitalizing on the perception of Asian-Americans as perpetual foreigners. The sentiment can be traced back to the 1790 Naturalization Act (forbidding Asians and other nonwhite individuals from holding U.S. citizenship) and the 1882 Chinese Exclusion Act (essentially prohibiting all Chinese immigration, initially for 10 years and later indefinitely). And it extends to the current wave of anti-Asian crimes tied to the COVID-19 pandemic. Whereas overall hate crimes in the U.S. 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 wholesale store, a woman doused with acid on her front porch in Brooklyn, a man knifed in Manhattan's Chinatown, 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 a mass shooting in Atlanta.
Although China presents a legitimate national security concern—and genuine instances of espionage should be prosecuted—there is evidence that the U.S. is haphazardly conflating nationality with ethnicity. Representative Ted Lieu of California 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 found that the proportion of defendants charged under the Economic Espionage Act who were Chinese or Chinese-American rose from 17 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. Many of these false positives—cases where the defendant is acquitted at trial, prosecutors drop all charges before trial, or the defendant pleads guilty to minor offenses and receives only probation—could be prevented by carefully examining the evidence before bringing charges, consulting a scientific expert on the merits, and avoiding biased, conclusory rhetoric.
The side effects of such a crude policy do more harm than good. Having spent my childhood in an idyllic Pennsylvania university town, I witnessed firsthand the community's reaction when a family friend—a Chinese-American physics professor who was a U.S. citizen—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, fearing that no one was safe from unfounded accusations.
The current approach sweeps broadly and baselessly. Not only do rash 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 U.S. for other countries on the promise of higher pay, prestigious positions, looser regulatory schemes and—most notably—no federal prosecutions for legitimate research activity. Brian Sun, a renowned litigator who successfully represented Lee in his civil lawsuit, explains: “If you're criminally prosecuted and disgraced in this way ... it's an academic death penalty: What are you left to do but go back to China?”
The long-term 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.”
The U.S. loses in this situation any way you look at it. The country 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 forcing the harmonization of patent law.
But these harms have gone largely unrecognized. In 2018 the National Institutes of Health—the main source of funding for many academic labs—instructed around 10,000 U.S. research institutions to continue cracking down. Sun calls these “gotcha” cases: they apply disproportionately heavy criminal penalties for mere administrative missteps. Several institutions, such as Emory University in Atlanta and MD Anderson Cancer Center in Houston, subsequently fired a number of their Asian-American researchers.
The myopia is astounding. Tensions and violence are escalating every 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 terminations does no good for anyone.
By treating Asian-American citizens as perpetual foreigners and prosecuting them without merit or nuance, the U.S. will continue down a self-destructive path, harming its own citizens, innovation and economy.