The author of this op-ed is a postdoctoral fellow at Yale Law School’s Paul Tsai China Center and a particle physicist.
The email intrigues me. Consisting of six bullet points, the content is banal and the vocabulary is bureaucratic, but there is an earnestness to the unpolished language. In a string of choppy sentences, China is referred to in the first person: “Our economy is no. 2,” “We are paying big price in environment,” “We must count on technology, cannot grow as past.”
The email excerpt features prominently in the Justice Department’s press release. Issued by the U.S. Attorney’s Office in the District of Massachusetts in January, it announces the arrest of Gang Chen, a professor of engineering at MIT, for “failing to disclose contracts, appointments and awards from various entities in the People’s Republic of China (PRC) to the U.S. Department of Energy.” A longer version of the same email, which Chen sent himself in 2016, appears in the criminal complaint filed by a special agent from the Department of Homeland Security.
A Chinese native, Chen came to the U.S. three decades ago and became a naturalized citizen in 2000. His background resembles many first-generation immigrants I know, who, after years in the new country, still feel torn between identities and alienated from its dominant language.
Reading the email for the first time, I pictured Chen, who is the same age as my parents, late at night or on a business trip, longing for the land of his birth and wondering what he could do for its people, start scribbling down splintered thoughts, enumerated out of professional habit. To me, the private message, written in haste and in halting English, was a display of vulnerability. It seemed to me that the only laws it broke were grammatical. Perplexed by its prominent use by the prosecution, I consulted my colleagues at the law school, who only shared my bewilderment.
The mystery was partially solved, albeit with a twist, when Chen’s lawyers filed a motion to sanction the prosecutor, U.S. Attorney Andrew Lelling, for “wildly misleading” statements. According to the defense, the email contains not Chen’s own thoughts but notes from a lecture by a Chinese official, which Chen attended. The concluding lines of the original message, which the charging document left out, as well as a second email in Chen’s inbox five hours later, would have clarified the context, Chen’s lawyers said.
I do not want to speculate on whether the prosecution intentionally misrepresented evidence or it was an honest misunderstanding. I am embarrassed that I had projected my own emotions on a stranger. When I envisioned Chen writing the note to himself, I had in his place one of my former professors.
But projecting, it seems, is what the prosecution hopes the public, including potential jurors, does. How one reads the email depends wholly on one’s view of China, be it a foreign adversary, the embodiment of authoritarian evil, or a large, complex country whose people possess as much humanity as Americans do. I cannot help but notice that of the 10 bullet points cited in the criminal complaint, the press release quotes up to the sixth, which starts with the word “communist.” It’s the only time this term appears in the email, when it refers to the 18th national congress of the Chinese Communist Party. Rendered radioactive during geopolitical upheavals of the last century and the dark hours of McCarthyism, “communist” today may well mean “treasonous” to Americans who want nothing to do with China’s ruling party.
Chen’s lawyers point out that their client has not been accused of any crimes of disloyalty. Rather, they say, Chen has been charged with “making an error in federal forms.” For omissions in one year of tax return and two grant proposals, Chen has been indicted on two counts of wire fraud, one count of failing to report a foreign bank account, and one count of making a false statement. If convicted, the maximum sentence can be years in prison plus hefty fines.
The serious charges, generally perceived in association with shady businesses or organized crime, appear absurd against a university professor who may be at fault for sloppy paperwork. The court operates with a veneer of impartiality, but the law is never as fair as it claims to be. In this case as in many others, the legal system is used as a means to a political end.
In the fall of 2018, Attorney General Jeff Sessions announced a new “China Initiative” to “combat Chinese economic espionage.” In two short years, the new initiative has resulted in scores of indictments ranging from trade secret theft to filing a false tax return. The Justice Department has also identified academia as one of its focuses, citing the “traditions of openness” and international exchange as “vulnerable to PRC exploitation.” Beneath the myriad of individual legal battles, the underlying conflict is one between an aged empire and a rising superpower. The real question is not about what rules and regulations exist or how they are applied, but who owns knowledge and whether it should be proprietary. In a world fractured by nations, races, and governing systems, can science transcend political borders?
The first time I heard of “Thousand Talent,” I was a college senior in China. It was the fall of 2008. The excitement from the Beijing Olympics still lingered in the air. One day, during class, the professor mentioned that a colleague had been selected for a fancy new thing called “qianren jihua,” the Thousand Talent Plan.
The news was met with pride and bemusement. None of us knew what the plan entailed. Little could I have imagined that a decade after, China’s flagship overseas talent recruitment program would become one of the most contentious issues in geopolitics, caricatured by the U.S. as a conduit for intellectual property theft. Since 2020, “qianren jihua” has largely disappeared from the Chinese internet, blocked on search engines and forbidden in official documents.
That fall, I was applying for graduate schools in the U.S. as an aspiring particle physicist. Growing up, I was instilled with the notion that the best of China would leave China. Settling overseas was seen as the epitome of success.
After the isolation of the Mao years, China’s policy of opening up gradually allowed, for the first time in decades, Chinese students to go abroad for study. Chen, who received his Ph.D. from the University of California Berkeley in 1993, was among the earliest wave of beneficiaries.
Beijing had hoped that the young talents would return to China after graduation and help their impoverished homeland develop its science and technology sectors. Its leaders would soon contend with human nature, that most people prefer a higher standard of living. For years, the majority of Chinese graduates stayed abroad.
The launch of Thousand Talent, the first in a series of overseas recruitment programs, came at a conspicuous time. Rapid economic growth meant the government could finally afford attractive financial packages with both robust research funding and generous personal compensation. Material abundance and modern conveniences were no longer exclusive privileges of the West. Promotion materials for these programs regularly appeal to sentiments of national belonging, calling on the Chinese diaspora to come home.
But the decision to uproot one’s life cannot be reduced to a paycheck or political slogan. The cumbersome bureaucracy in China, conniving office politics, surveillance and censorship, pollution and food safety, all give cause for pause. Pulled between continents, motivated by a duty to globalize science or enticed by the extra earning, many participants in Chinese talent programs have nevertheless kept their positions overseas. This conduct, known as “double-dipping,” is not unique to China. Between 2003 and 2013, the Pakistani government spent millions on hiring mathematicians from Europe, who were listed as full-time faculty in Pakistan but spent as little as a few weeks per year in the country.
It is not unusual for academics to take up visiting or advisory roles, but occupying multiple paid positions without proper disclosure or fulfilling the time requirements for each is a serious misconduct. In this case, it’s mostly the Chinese side that bears the loss from “double-dipping.” Some institutions have tightened their requirements to prevent this unethical behavior. Others, especially newer or provincial schools, choose to turn a blind eye. The gain in prestige by association may be worth the cost, which can also help attract future funding, faculty, and students.
In a developing economy like China’s, weak regulations and lax enforcement are often not due to a lack of awareness but conflicting interests. When rule-breaking is endemic, selective crackdowns or simply the threat of one can also be wielded by the government as an effective tool of control. A similar dynamic applies to China’s checkered record of intellectual property protection, where the abidance of law gives way to the breathless demand for growth.
Political discourse in the U.S. often paints China as a rogue nation with an insatiable appetite, cheating and stealing its way to prosperity. There is some truth to that, but the simplified narrative ignores other witting actors, such as foreign companies that prioritize access to the Chinese market over safeguarding intellectual property. Their only principle, after all, is profit.
The targeted blame on China also overlooks U.S. history. After winning independence from Great Britain, the young republic embarked on an ambitious mission to acquire advanced technology and recruit skilled workers from abroad, in frequent violation of British export control and emigration laws. Alexander Hamilton, the first U.S. Secretary of Treasury, argued for protecting domestic industries using tariffs and subsidies, as well as procuring European machinery to achieve self-reliance. Two centuries after, Hamilton’s plan finds its echo across the Pacific, while the U.S. aggressively polices the marketplace of ideas it once plundered.
In 1982, concerned about technology transfer to the Soviet Union, the Reagan administration convened a study on the need for control on scientific information from federally-funded research. The conclusion, issued three years after as a National Security Decision Directive, remains in effect, at least on paper. It states as policy that “to the maximum extent possible, the products of fundamental research remain unrestricted.” The directive goes on to assert that “where the national security requires control,” the mechanism is classification.
Chen’s lawyers note in their motion that the professor does not have access to classified information. If Chen’s research, funded by the Department of Energy, is “unrestricted,” then what U.S. interests could he have harmed by failing to disclose his Chinese affiliations?
The China Initiative is led by the Justice Department’s National Security Division, responsible for countering “nation-state threats to the United States.” The term conjures up images of the most horrific scenarios, like terrorism, or war. This may be the intended effect, but the China Initiative, according to the Justice Department’s own statements, focuses on “economic espionage”: commercial patents, not weapons.
That a university professor may be suspected—if not formally charged—of intellectual property theft for research collaborations also traces its legal and ideological underpinnings to the decade marked by “Morning in America” and the fall of the Berlin Wall. At the end of WWII, partly attributable to the Manhattan Project, the federal government became the primary backer of academic research. For many years after, results from publicly-funded projects generally remained in the public domain.
This changed in 1980 with the passage of the Bayh-Dole Act, which allows and, as a matter of fact, encourages universities to patent products from federally-funded research and license them for profit. The commercialization and privatization of academic research has had profound impacts on public health, social equity, and intellectual freedom. Universities pocket lucrative corporate deals by granting exclusive access to their inventions. Schools and research institutes fight lengthy legal battles for rights over knowledge.
The Patent and Copyright Clause of the U.S. Constitution says Congress should have the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." As private property took precedent over the public good, by the turn of the 21st century, intellectual property laws in this country were less about the progress of science but the pursuit of profit. The state serves corporate interests by enforcing them both at home and abroad.
The 1995 TRIPS Agreement negotiated at the end of the Cold War requires each member country of the World Trade Organization to adopt transnational standards for intellectual property legislation, including a 20-year duration for patent protections. Criticized as an imperial tactic that imposes “U.S.-style intellectual property laws” on developing nations, sometimes with the threat of trade sanctions from the U.S. government, the agreement exacerbates economic inequality and endangers global health by raising the price on essential medicines. Like the Bayh-Dole Act, TRIPS also gives U.S. businesses a competitive advantage.
In the fall of 1996, President Bill Clinton signed into law the Economic Espionage Act, making trade secret theft a federal crime. Intellectual property infringement, traditionally treated as a civil dispute, is increasingly criminalized and connected with national security. According to the Justice Department’s prosecutorial policy, discretionary factors include “evidence of involvement by a foreign government, foreign agent or foreign instrumentality.”
China has been cheating at a game rigged in favor of the U.S. The house is doing everything in its power to ensure victory. With both governments immersed in an imaginary race, few are paying attention to the margins or contemplating the cost.
Having declared China a threat that requires not just the attention of the U.S. government but also a “whole-of-society” response, the FBI has sought to put Chen’s case on the minds of the average American with a direct appeal.
“The real victims in this case are you, the taxpayers,” Joseph Bonavolonta, an FBI special agent in Boston, said at the press conference announcing Chen’s arrest, echoing earlier accusations by U.S. Attorney Andrew Lelling that Chen was working for the Chinese government on U.S. dimes.
I find the emphasis on “you, the taxpayers” fascinating. Many foreigners, including millions of undocumented immigrants, pay U.S. taxes. Many ostensibly “American” companies, as well as the wealthiest of individuals, try every trick in the book to avoid paying taxes. Federal spending on academic research is miniscule compared with the military budget or corporate subsidies. In this case, “you, the taxpayers” are also footing the bill for the lengthy, multi-agency investigation of Chen and subsequent prosecution.
The sense of injury the prosecution tries to invoke is not really about public spending but national allegiance, based on the pretext that U.S. interests and Chinese interests are mutually exclusive. In his six-minute address, Bonavolonta mentioned “Chinese” 12 times, “China” nine times, “Communist” seven times, and “Chinese Communist Government” five times.
I do not doubt that Lelling and Bonavolonta are honorable men who love their country and strive to defend it. What I am curious about is just what kind of country they are defending. In a 2020 interview with Science magazine, Lelling explained that the perception of “racial profiling” in the China Initiative is not intentional but due to the demographics of the “rival nation,” “made up almost exclusively of Han Chinese.” He said, “If it were the French government targeting U.S. technology, we’d be looking for Frenchmen.”
The choice of France as a hypothetical is rather ironic. The European nation is notorious for its industrial espionage. “French Intelligence Services have been breaking into the hotel rooms of American businessmen and surreptitiously downloading their laptops” for years, former Defense Secretary and Director of Central Intelligence Robert Gates said at the Council on Foreign Relations in 2014.
France is a U.S. ally and a majority-white nation. To be white is to be accorded the presumption of innocence, to be deserving, to feel entitled to land, property, and protection. U.S. enforcement of intellectual property laws that favor corporate interests, mostly managed and owned by white people, and disproportionately burden the developing world, mostly comprising non-white populations, is another example of the racialized tenet in capitalist exploitation.
Since the first group arrived in the early 19th century, people of Chinese descent and the greater Asian community in America have borne the pain of perpetual foreignness, stigmatized as carriers of disease, scapegoated for the loss of jobs, suspected as enemy combatants in times of war and geopolitical hostilities. I would like to believe, as Lelling claimed, that the investigations “look for conduct, not for ethnicity,” but to be racialized is to be tethered to one’s ancestral homeland and implicated in every ill of that place. Since the start of the COVID-19 pandemic, hate crimes and harassment against Asians have skyrocketed in the U.S. Instead of recognizing the complicated, conflicting factors related to governance and stage of economic development in China, Western politicians and pundits routinely blame “Chinese culture” for the country’s many problems, reinforcing orientalist stereotypes and fanning racial animosity.
On Jan. 5, a consortium of Asian American advocacy groups, community organizations, science associations, and concerned individuals sent a letter to President-elect Joe Biden, urging him to end the China Initiative. Leaders and organizations in science and civil rights have also requested Congress to conduct hearings on the initiative and perceived racial prejudice. As Merrick Garland was finally confirmed as attorney general on March 10, many in academia and the Chinese American communities are anxiously awaiting decisions from the new Justice Department on what it will do about the initiative.
The Biden administration is reportedly considering amnesty measures, which would allow U.S. academics to disclose foreign funding without retribution. In the meantime, new cases have opened under the China Initiative and old ones have continued. Being “tough on China” is a rare spot with bipartisan support in this divided nation, which only seems capable of coalescing around a foreign threat, real or imagined.
Amnesty for disclosure would be a step in the right direction, but changes to prosecutorial policy alone are mere band-aids applied to the malignancy of techno-nationalism. As I write, hundreds of academics in the U.K. are being investigated for affiliations with Chinese entities. The Australian parliament has also been alerted to similar collaborations on the continent. On the other side of the oceans, Chinese leader Xi Jinping has called for stronger regulations as the country transitions from a “major importer” to a “major creator” of intellectual property, which include better protection for Chinese companies in oversea markets. While the pandemic has made a mockery of political borders, courts and legislatures are busy upholding illusory lines across bodies and pieces of knowledge. To be part of a nation is to be claimed.
On January 15, the day after Chen’s arrest, President-elect Biden announced the appointment of Eric Lander to head the Office of Science and Technology Policy, a position elevated to cabinet-level in the new administration. Lander, a prominent geneticist and founding director of the Broad Institute, is well-known for his policy acumen and exceptional talent in raising private funding for scientific research. Broad, co-managed by Harvard and MIT, had been in a bitter, multi-year court battle against the University of California Berkeley for rights to CRISPR-Cas9 gene-editing technology. Broad won the suit in 2018.
Alongside the announcement, Biden wrote Lander a letter with five questions, a gesture in homage to a former U.S. president at another pivotal time. In November 1944, as the end of WWII drew near, President Franklin D. Roosevelt asked his science advisor, Vannevar Bush, four questions on scientific development and education in times of peace.
Bush, founder of the defense giant Raytheon and a former engineering professor and vice president of MIT, responded the following year with a report entitled “Science, The Endless Frontier.” Credited with the establishment of the National Science Foundation, it emphasized the importance of basic research and advocated for strong federal support.
The frontier has had a special hold on the American imagination. The promise of boundless expansion distracts from internal conflicts. Seeing new territories as pristine space absolves the empire in its ruthless conquest. Two weeks after Bush’s response, atomic bombings obliterated Hiroshima and Nagasaki. As director of the Office of Scientific Research and Development, Bush had initiated and overseen the bombs’ development.
Roosevelt’s tasks for Bush started with the dissemination of scientific knowledge around the world “consistent with military security” and “as soon as possible,” followed by “the war of science against disease.” Three quarters of a century after, Biden’s list also opens with global issues, the pandemic and climate change, before taking a sharp nationalistic turn:
“How can the United States ensure that it is the world leader in the technologies and industries of the future that will be critical to our economic prosperity and national security, especially in competition with China?”
I empathize with Biden’s position. As the head of state, the very legitimacy of his office is predicated on forms of exclusion. In the words of Achille Mbembe, “the ultimate expression of sovereignty resides, to a large degree, in the power and the capacity to dictate who may live and who must die.” Yet the material reality of our planet is such that no nation can survive alone. No border can stop a virus. No weaponry can fight against shifts in the ecosystem. Nations, like the human body, are porous entities. The illusion of an enclosure frays at the simplest mention.
In the next question, Biden asks for ways to guarantee that “the fruits of science and technology are fully shared across America and among Americans.” I applaud the incentive to address structural inequalities, but it’s the last five words that capture my attention: “across America and among Americans.” Foreigners like myself live in America and Americans live abroad. True equity cannot be achieved if the nation is foregrounded in policymaking. The first two goals in Biden’s letter, to protect public health and address climate change, cannot be accomplished if the U.S. government continues to enforce an intellectual property regime that places profit before people, hindering the developing world’s access to vital pharmaceuticals and green technologies. The well-being of Americans, the survival of humanity, and the future of this planet are jeopardized if America clings to the obsolescent objective of assured dominance.
To rank nations by technological prowess is to accept artificial boundaries, to assign knowledge with a passport, to assume progress moves in a single direction—that of capital accumulation—and growth is always benign. The narrative of great power competition in the sciences has obscured urgent issues of ethics. The Chinese government’s abuse of emerging technologies raises alarms in the U.S., not as the need to examine similar practices here or call for transnational governance of these industries, but as another reason to demonize the Chinese people and scientists of Chinese descent. We hear about the red menace from those who have little concern with the state of American democracy, and still less with human rights elsewhere, but who simply want to perpetuate a system that justifies their sense of superiority.
More than 200 members of the MIT faculty have signed on to a letter addressed to the university president in support of their colleague. It provides a detailed rebuttal of allegations against Chen and concludes with a striking note of solidarity: “the defense of Professor Chen is the defense of the scientific enterprise we all hold dear—We are all Gang Chen.”
The scientific enterprise should be defended against undue political pressure. It also needs a reckoning with its role in facilitating state violence and feeding corporate greed. Knowledge belongs in the commons. The public is global. The academy, at its best, has always challenged the state and transcended private interests. We are all Gang Chen, standing at the edge of nationhood, overlooking the hinterlands of understanding, innocent in our wishes, complicit in our identity. Scientists cannot assume to be neutral explorers of nature or obedient followers of the state, but must join the effort of moral pathfinding.
Yangyang Cheng is a postdoctoral fellow at Yale Law School’s Paul Tsai China Center and a particle physicist. Follow her on Twitter.