As the United States government’s efforts to curb China’s attempts at economic espionage have ramped up in recent years, so have concerns that these investigations are unfairly targeting individuals of Chinese descent. The case against Franklin (Feng) Tao, a professor of chemical engineering at Kansas University, has been criticized by organizations who say this is the latest in a series of government inquiries that involve racial profiling.
Tao was indicted last August on federal charges brought against him for allegedly hiding a relationship with Fuzhou University in China while being employed at the University of Kansas (KU) and thus unlawfully receiving US government funding. According to the indictment, Tao signed a contract with Fuzhou under a Chinese government–sponsored talent program known as the Changjiang Professorship—which posed a conflict of interest to his position at KU—but failed to report this to the university. His lawyers counter that the government has launched a disproportionate response to an “employer-employee dispute” and that the charges themselves don’t hold water. And groups that advocate for biologists and the rights of Asian Americans accuse the US government of targeting Tao because of this ethnic background.
As his case winds its way through court, Tao faces multiple charges of wire fraud and false statements. If he is found guilty, he could face jail time and be fined millions of dollars.
Because of a lack of transparency that exists . . . there’s a risk of innocent people being accused of things and losing their careers as a result of a false accusation.—Benjamin Corb, American Society for Biochemistry and Molecular Biology
Scholarly talent programs such as the one Tao is accused of clandestinely taking part in aim to recruit top scientists to Chinese research institutions and have been a focal point of US government investigations. Probes into potential cases of economic espionage have been ongoing since the late 1990s, but the focus on China has ramped up in recent years. In 2018, the US government launched the “China Initiative,” an effort aimed at countering national security threats from the country, including economic espionage and the theft of intellectual property.
In a speech this February, Christopher Wray, the director of the Federal Bureau of Investigation (FBI), stated that there were around 1,000 ongoing investigations into espionage attempts from China. Wray also highlighted the threat posed by China in the academic sphere. “We know they use some Chinese students in the US as nontraditional collectors of our intellectual property,” he said. “We know that through their ‘Thousand Talents Plan’ and similar programs, they try to entice scientists at our universities to bring their knowledge to China—even if that means stealing proprietary information or violating export controls or conflict-of-interest policies to do so.”
Frank Wu, the president of Queens College, The City University of New York, and the former president of the Committee of 100, a group of Chinese Americans dedicated to advancing US-China relations, says that along with an increasing number of cases where people are found guilty, there are “more and more cases” of people who didn’t do anything wrong. “[Tao’s] case doesn’t appear to be one that involves the defendant engaged in what we would normally think of as espionage,” says Wu. “Even if you believe the government, this is a more minor case that has to do with disclosure and conflict of interest.”
A winding saga
Tao was born in China and has been living in the US since 2002. After completing his doctoral studies at Princeton University, he remained in the US as a postdoc, then as a professor. In 2014, Tao was hired as a tenured professor at KU’s Center for Environmentally Beneficial Catalysis, where researchers develop technologies for natural resource conservation. Since the case against the scientist was first brought forward last summer, the legal battle has taken a number of twists and turns.
A few months after Tao was first indicted, the scientist’s attorneys filed a motion to dismiss the indictment, asserting that the investigation originated out of fabricated allegations by a disgruntled colleague angry at Tao over authorship on a number of manuscripts. According to Tao’s legal team, Tao never actually accepted the Fuzhou position. And even if he did, they said, federal prosecutors were transforming a “garden-variety employment dispute” into a “string of federal fraud offenses.”
In response to the motion to dismiss, the government filed another indictment, which superseded the first and elaborated on the initial charges. As a result, the motion to dismiss was rejected by the court. In June, federal prosecutors brought a second superseding indictment against Tao. The original indictment charged Tao with one count of wire fraud and three counts of program fraud, while the newest one charged him with a total of 10 offenses: seven counts of wire fraud and three counts of false statements. Tao faces up to 20 years in federal prison and a fine of $250,000 for each count of wire fraud and another five years in prison and $250,000 for each false statement.
Tao’s lawyers have since filed motions to dismiss the latest incitement. In addition, a group led by Asian Americans Advancing Justice-AAJC and Asian Americans Advancing Justice-Asian Law Caucus, two organizations dedicated to advocating for and defending the civil rights of Asian Americans and other minority groups, filed an amicus (“friend of the court”) brief in support of Tao in August. The brief states that Tao “stands as one example, among many, of the United States Government’s coordinated effort to target Chinese American scientists and researchers based on their ancestry rather than suspected criminal activity.”
Among the signatories of the brief is the American Society for Biochemistry and Molecular Biology (ASBMB). According to Benjamin Corb, the director of public affairs at ASBMB, the society wants more clarity from federal prosecutors, government agencies such as the National Institutes of Health (NIH), and universities about what researchers must do to ensure they are not engaged in activities that violate the law. “Because of a lack of transparency that exists . . . there’s a risk of innocent people being accused of things and losing their careers as a result of a false accusation,” Corb says. “We want to ensure that all scientists are being treated equally, and that we’re doing everything that we can to give scientists the opportunity to make sure that they’re on the right side of the law.”
The lack of clarity regarding what is legal has engendered confusion among scientists. For example, participation in foreign talent programs has only been banned in recent years. “Part of what’s happened is researchers just haven’t caught up,” Wu told The Scientist in June 2019.
Last week, government prosecutors filed a request for the court to deny the amicus brief, stating, among other things, that the authors “incorrectly argue that the government is targeting Chinese Americans based on their ethnicity rather than on suspected criminal activity” and that “the defendant lied to and defrauded the US government and an American university to benefit himself and the [People’s Republic of China] and its strategic needs.” Jim Cross, the public information officer for the US attorney in the District of Kansas, sent The Scientist this official response to the amicus brief and provided no further comment.
A pre-trial hearing for Tao’s case will take place in the US District Court for the District of Kansas on October 1. “As you might imagine, for anyone charged in a criminal case it is the most stressful thing that you can go through in your life,” says Peter Zeidenberg, the lead defense attorney on Tao’s case. “Everything is at stake: your liberty, your freedom, and your employment.”
Investigations raise concerns of racial profiling
Many of those targeted by the government’s recent investigations have been of Chinese descent, aside from some notable exceptions, such as the case of Charles Lieber, a professor of nanoscience at Harvard University who was arrested in January for allegedly concealing ties to China. A 2018 study found that the percentage of people of Chinese descent charged for economic espionage in the US rose from 17 percent between 1997 and 2009 to 52 percent from 2009 to 2015. Of all the Chinese defendants charged, 21 percent were never proven guilty of their alleged crimes. “The same can be said for only 11% of defendants with Western names,” the authors write in their report.
When FBI agents stormed the home of Temple University physics professor Xiaoxing Xi at dawn on a spring day in 2015, the scientist was confused and terrified. According to Xi, armed agents ran into his house yelling, rounded up his wife and daughters at gunpoint, and arrested him. “It was very traumatic,” Xi says. “I had absolutely no idea of why they were here to arrest me.”
Xi, who is a naturalized American citizen, was accused of sharing blueprints of a US-made technology, the pocket heater (a device used in superconductor research), with Chinese scientists. Months after the arrest, federal prosecutors dropped the case when it became apparent that Xi was innocent—the schematics were not, in fact, those for the pocket heater, according to testimony from several scientists, including the engineer who invented the technology.
In 93 percent of 189 cases investigated by the NIH for foreign ties, China was the country of foreign support.
It’s been several years since the case was dropped, and Xi has been able to return to his position at Temple University after being suspended from his job while the investigation was ongoing. But Xi tells The Scientist that his life has not gone back to normal. Both at home and at work, he remains in fear that something he says or does will be used against him. Although he is continuing his research, Xi remains afraid to apply for grants to support his work. “I am not applying for funding as a sole principal investigator,” he says. “I always try to team up with other scientists . . . so I’m not the person to sign the forms and check those boxes, because I’m scared.”
There have been several other highly publicized instances of Chinese-American scientists who have been wrongfully investigated and charged. Sherry Chen, a naturalized American citizen who was a hydrologist at the National Weather Service, was arrested for alleged economic espionage in October 2014. She was accused of illegally downloading data about American dams and falsifying statements about meetings with a high-ranking official in the Chinese government. The case was dropped several months later, but Chen was still fired from her job.
According to a recent presentation given by Michael Lauer, the deputy director for extramural research at the NIH, there are 399 researchers of “possible concern.” Of the 189 scientists the agency has investigated for foreign ties, 54 have resigned or been terminated as a result. Lauer also reported that in 93 percent of the 189 cases, China was the country of foreign support.
The government’s crackdown on foreign influence among scientists has cast a chill over Chinese-American researchers who worry that they, too, may become the subjects of government probes. The uptick in prosecuted cases has also raised fears about a potential exodus of scientists from the US. Politicians have voiced concerns as well. Earlier this year, two US Representatives, Jamie Raskin (D-MD) and Judy Chu (D-CA), launched an investigation into possible racial profiling by the FBI and NIH. “While I get the serious national security implications of Chinese government espionage, none of that justifies dragnet-style ethnic profiling of U.S. citizens who are Chinese-American,” Raskin told Nature earlier this month.
The outcome of Tao’s case remains to be seen. The amicus brief in support of Tao states that racially based prosecutions have caused immense harm. “That’s very true—I know that from my own experience,” Xi says. “I can visualize what all these people are going through.”
The government has a different take on the case. “Both the defendant and amici are espousing—while also contributing to—a false narrative entirely unrelated to the legal issues before the Court that the U.S. government is targeting Chinese people,” the attorneys prosecuting Tao wrote in the filing this month, “when in reality the U.S. government is responding to a national security threat posed by the government of China.”
Correction (September 18): The article initially stated Frank Wu’s affiliation as his former position at the University of California, Hastings College of the Law. He is the president of Queens College, The City University of New York. The Scientist regrets the error.