Interviewed by: Yuxuan Chen, Juan Zhang

Professor Margaret Lewis’s research focuses on law in China and Taiwan with an emphasis on criminal justice and human rights. Professor Lewis has participated in the State Department’s Legal Experts Dialogue with China, has testified before the Congressional-Executive Commission on China, and is a consultant to the Ford Foundation.

The Monitor’s student journalist Yuxuan Chen had an interview with Professor Lewis. They discussed the China Initiative, its implications and problems. Yuxuan is a rising junior year student at New York University. She’s majoring in International Relations.

1, Your paper on China Initiative has drawn huge attention. In this paper, you said the China Initiative could be problematic for civil rights. Could you share with us some of your arguments on this question?

The paper is forthcoming in the Journal of Criminal Law and Criminology. It contains a number of arguments, which means it is very long with lots of footnotes, but it boils down to a few key points.

First, I think that the China Initiative is problematic because it stigmatizes people who are seen as possessing a shared characteristic of “China-ness”. By that I mean that people who are ethnically Chinese, have People’s Republic of China nationality or national origin, or have other connections with the People’s Republic of China are viewed with increased suspicion and that is apparent through the rhetoric being used by the US government surrounding the China Initiative.

And more generally, I’m concerned that the way that “China” is talked about is taking on an anthropomorphic form, meaning that the language used often is that “China” can steal or “China” can cheat and “China” has malign behaviors. However, “China” is not a thing that can violate the criminal law, rather it is individuals: natural people or corporate entities. But the language used in the China Initiative can create a sense that an overarching “China” itself is a perpetrator.

2, How does the U.S. law enforcement implement the China Initiative in their daily work? Looking forward, what are your recommendations to fight against those legitimate espionage activities while at the same time not overreacting?

Of course the China Initiative is only one of many things that the Department of Justice and FBI do. The FBI is the principal investigative arm of the Department of Justice as well as a full member of the US intelligence community. The Department of Justice is a huge entity and only part of the work it does is criminal prosecutions, and certainly both the Department of Justice and FBI are capable of walking and chewing gum at the same time so they have many other concerns along with the China Initiative.

That said, what I think is notable is how much emphasis is being put on the China Initiative and the resources that are being put toward this. For example, just last month, Director Wray of the FBI said there were over 2000 active investigations that trace back to the People’s Republic of China government; just in February, he said approximately 1000. There is increasing momentum. Many of these active investigations will not turn into prosecutions. Nonetheless, this number shows the momentum and the seriousness with which the United States government is taking the China Initiative.

I want to be clear that there are threats. What I think though is that we need to better define what are the assets we are trying to protect using the criminal law and then protect those assets from threats wherever they come from. And that doesn’t mean necessarily putting the same resources towards analyzing threats from Chile or Cambodia or China. But I do think a country neutral framing is important because it takes away this sense of there being a nemesis out there and we should just focus on that, instead of shifting our focus to what it is fundamentally we think is important for the United States’ economic and national security.

Do you think that The Department of Justice should set out a clear set of standards and think through their objectives before they proceed with any investigations under the China Initiative?

I think the leadership of the China Initiative is largely from national security backgrounds. Their job is to protect national security and that is hugely important. However, there needs to be a much broader conversation. The FBI and the Department of Justice have started to have more public outreach. This needs work because right now that outreach seems to be more about explaining how the government sees the nature of the threat rather than collaborating. Let me give you a few examples of the kind of collaboration that I think are important.

First, there needs to be more collaboration with the scientific community so that we can better clarify the lines between open science, and intellectual property which is a national security concern that should be protected with criminal sanctions. I also think there is more work that could be done to discuss how to strengthen grant reporting and auditing in a country neutral manner so again we are protecting our assets from threats wherever they might emanate from.

Secondly, a group that could be helpful in the conversation are criminal justice scholars. They have done a lot of thinking outside of the China context about what it means to have prosecutors who are risk managers, which tends to “other” certain populations as risky elements that need to be controlled. I think this is problematic because it stops us from viewing people as individuals who can contribute to the collective good.

Third, there need to be more conversations between the government and communities of people of Chinese ethnicity and/or of the People’s Republic of China nationality, there is of course some overlap there. There is a challenge to reconcile two real phenomena: the threat by association attaching to these communities is real and the threats from the People’s Republic of China party state are real too. And that’s going to take real work to figure out how we can deal with both of those phenomena. Right now, I don’t see that work happening in the way that it should be.

3, Many Chinese American scientists interpreted the China Initiative as a governmental message to avoid research collaboration with their Chinese counterparts as much as they can, even if they are legitimate research projects. How do you comment on these Chinese American scientists’ assessment? Is it accurate?

I am not Chinese American nor am I a scientist so I am always hesitant to comment on how they feel because I don’t have that experience. I would say that there’s no doubt that the prosecutions under the China Initiative are meant to have a deterrent effect. That is clear. The issue is what are they trying to deter and is that deterrence hitting the mark. The goal is to deter nefarious behaviors, such as people engaging in what is sometimes called grant fraud (not a technical term), people who are not reporting accurately where they are getting money from or have relationships that could compromise their research and where it is going.

But there is no doubt that Chinese American scientists have been prosecuted at a higher rate than non Chinese American scientists. However, we don’t know the numbers to understand whether that higher rate is fully justified. There is a lack of transparency which is understandable because this is law enforcement and there are national security concerns; however, it makes it really difficult to get to the bottom of whether these disparities are based in justifiable reasons or are they being influenced by bias whether that is explicit or implicit. 

4, When we hear economic espionage related to China, we very often hear the word “national security”. Does national security always intertwine with economic espionage in the U.S.’s legal field? How does the U.S. Department of Justice deal with economic espionage from other countries?

Key to economic espionage is that each time the government prosecutes under that criminal provision it is deciding that the alleged theft of trade secrets is not just a concern to the company claiming a theft that should be handled in civil courts, but rather it is a wrong with broader societal implications that should be addressed via the criminal law. When economic espionage is the crime being charged, the government needs to prove that the intention of that intellectual property theft was to benefit a foreign government or foreign entity linked with the foreign government. So this idea of economic espionage, which is sometimes called industrial espionage, is rooted in national security concerns: that a foreign government is benefiting from an intellectual property theft.

The China Initiative is much broader than economic espionage. Other charges include wire fraud, obstruction of justice, money laundering, etc. so economic espionage is far from the only crime in play here. But as you know, economic espionage is not China specific. The law itself is not written with any particular country in mind. China does however receive the bulk of attention and this is due to a combination of that there is indeed intellectual property theft tied to the People’s Republic of China party-state and that the United States government is increasingly focused on these cases because they see a particular strategic importance. We just don’t know to what extent the number of thefts is increasing because, if people are successful in committing criminal acts quietly, they can go undetected. It’s really difficult to give numbers of how much intellectual property has been stolen.

Is there a different way that The Department of Justice deals with economic espionage from other countries and from China?

Certainly other countries are getting a lot less attention. There have been cases where economic espionage has been used when other countries were involved but the idea of having a China Initiative, of having the Department of Justice name a major initiative after a country, is highly unusual if not unprecedented.

Is this because the US now regards China as an increasingly huge threat to its national security?

The United States and China are in a more competitive situation than in the past and there is clear evidence that there are thefts of intellectual property that is located in the United States and considered important to the United States because it is held by certain companies, certain government agencies, or otherwise considered of strategic national importance.

But it is interesting if you look at the language of the China Initiative because sometimes it is about national security, sometimes it is about economic security and national security. One aspect that needs to be understood is that this is different from traditional spying of government information. Much of this is about intellectual property held by private companies so there are some definitional issues: sometimes it gets a little blurry about to what extent does intellectual property held by private companies rise to the level of being a national security concern as compared with an issue that, if someone steals it, the company can take the alleged thief to court but that would be in civil court for monetary compensation. There wouldn’t actually be the possibility of criminal penalties.

5, While preparing this interview, we found a comment regarding academic espionage made by Professor Mark Elliott , Harvard’s Vice Provost for International Affairs. The following is his remarks:

 “I don’t even understand the term ‘academic espionage,’” Elliott says. “Espionage involves stealing secrets, something you’re trying to keep private or away from someone. But unlike in a company, where you have inventions and things that you patent and you want to protect and you don’t want anybody else to see, for academics the goal is to publish what you have learned. It’s to share.”

Is academic espionage a fairly new term that specifically refers to China? How do you view the two terms academic espionage and intellectual theft?

Economic espionage is a federal crime, 18 US code section 1831. It is actually a provision in the law that can appear on charging documents when someone is accused of committing a crime. There is no such thing as a federal crime of “academic espionage.” That’s a general reference to what is also termed sometimes “grant fraud” and usually prosecuted as a false statement because people have written something false on a federal grant form or other disclosure that is subject to requirements that the contents be true.

And this leads to a bigger question of do we want federal criminal law to be the method of addressing false statements on grants disclosures. Perhaps in extreme cases that seems appropriate but this is a place where I think we need to seriously consider what non-criminal options could deter behaviors we don’t want. If you look at the Justice Manual of the Department of Justice—which is the guidance to prosecutors—it includes as a reason not to commence prosecution that there exists adequate non-criminal alternatives. That leads me to question, when do we think there should be other deterrence mechanisms, such as blocking people from future grants and administrative sanctions. On the other hand, when do we want so-called “academic espionage” to lead to the possibility of someone actually spending time in prison. 

6, Defendants charged under the Economic Espionage Act, both Chinese and other Asians, received much longer prison terms and were more likely to be acquitted than defendants of any other race, Andrew Chongsheh Kim concluded in his 2018 paper, citing 136 empirical analyses of Economic Espionage.

As a legal scholar, how do you interpret this finding?

I think the study is worrisome but inconclusive. I applaud the efforts to have a data driven approach, and people are continuing to try to get more data around the China Initiative to give further texture and understanding to these cases.

But it is hard given the lack of data and the limits on transparency. Some of that lack of transparency is totally understandable because these are ongoing criminal investigations with national security concerns. But, as someone who teaches criminal justice in the United States totally outside of the China context, I always get worried when I hear the government say, “Trust us. There are national security concerns. We’ve got this.” Rather, there needs to be oversight. I do think there are questions that deserve further study. And one of those is whether the sentencing discrepancies have persisted since 2015, because that paper which was published in 2018 uses data from the Obama administration. If the sentencing discrepancies have persisted, then what are the possible explanations for that aside from ethnicity or race?

If there are still discrepancies, perhaps they can be explained by cases tending to involve larger dollar amounts of theft or other severe circumstances that would justify higher sentences and be totally separate from the ethnicity of the defendant. Then that would not be so worrisome. But if the disparity can’t be explained by ethnicity neutral reasons, then we have to ask why is that disparity there. It could be that implicit bias is in play or it could be that the defendants in these cases are seen as more blameworthy and thus should be punished more. Or maybe the idea is that by punishing these cases more severely, it will have a deterrent effect on the general public so other people will not engage in similar behaviors. But that requires more analysis to figure out why there are such disparities and what it means for adjustment in policies.

Do you think there is a sense of over deterrence in the Department of Justice’s investigations on China?

We need to stop and think about what are the behaviors that we want to encourage. For example, look at artificial intelligence. A report released last month documented how the United States’ economy benefits greatly from talent flows coming to the United States to work on AI. That is the type of collaboration we want. Or scientific collaboration that can help us find a vaccine to COVID-19. We want to figure out how we can continue the good collaboration and then, at the same time, put guardrails up to try to limit the ability of people to hide contacts they have that might compromise the research and present real national security threats. When you rely too heavily on criminal law, it can create over-deterrence where people will be hesitant to engage in activities that might put them under the microscope.

There is an urgent need for the United States to remain its openness in innovation and scientific research while protecting its national interests.

This is difficult. There’s no sweet spot or magic place where this is all perfectly worked out. But I do believe that the United States can do better as a country than we are doing now. There needs to be a rethink about how we are approaching these issues as a country, to try our best to hold on to positive collaboration and support values, particularly of diversity and inclusion, while still protecting national security interests.

7, From a perspective of a legal scholar, is there anything that struck you most in the current US-China relations?

I first went to China in 1995 when I studied in Beijing. That was a very different time, certainly with a lot more optimism about the US-China relationship.

It is a very difficult time in US-China relations now and there are reasons for this both in China and in the United States. I worry that if the United States government does not deepen engagement with communities within the United States when confronting the “China threat”—and I say confronting the “China threat” to emphasize this is language used by the United States government—then I think we risk compromising our values. The United States cannot control what the PRC party-state does, but we can control how we respond to what the PRC party-state is doing. It worries me when I see, for example, the development last week regarding the ability of foreign students to stay in the United States. We are constructing further barriers to foreign students (a significant percentage who are from the People’s Republic of China), and that really worries me because so much of the United States’ strength has been in its diversity and openness. Indications are that the relationship between the United States and China is going to be intense for a long time to come. It will take real work to navigate how we, and I say that as an American, confront real national security threats while also standing for a genuine sense of belonging and inclusion for people who are seen as connected to the People’s Republic of China.