7

Law Enforcement Agency Responses

Thomas Fingar (Stanford University) moderated a panel on the evolution of law enforcement agency responses to research security.¹ The interaction between the research community and the law enforcement and national security communities has been a centerpiece of the National Science, Technology, and Security Roundtable’s (NSTSR) work. These relationships are important in order to achieve the goals of mitigating threats to U.S. national and economic security and enhancing the open and collaborative science and technology (S&T) ecosystem critical to U.S. prosperity and security. He said that, at times, the relationship has been fraught and counterproductive; however, it is now more cooperative and productive.

Fingar said that when the NSTSR was established, much of the focus was on illicit actions of foreign actors, primarily China. The China Initiative² was launched in 2018 as the Department of Justice’s (DOJ) response to judgments that the principal threat to research security came from China and Chinese nationals. Threats were treated primarily as a law enforcement issue, and Fingar said that some actions taken by law enforcement were viewed by academic researchers as excessive, ill-founded, or harmful. Fingar added that though the China Initiative was eventually terminated, the negative effects of the initiative have lingered and the

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¹ The Federal Bureau of Investigation was planning to participate in this panel but was unable to at the last minute due to unexpected illness.

² See https://www.justice.gov/archives/nsd/information-about-department-justice-s-china-initiative-and-compilation-china-related.

atmosphere it created has hindered efforts to manage the problem. During its convenings, the NSTSR was briefed on concerns from Chinese and Chinese American researchers about what seemed to be ethnic targeting by the U.S. government of Chinese and Chinese American researchers working in the United States.³

Charles Durant (Oak Ridge National Laboratory) said that the Department of Energy (DOE) national laboratories and the larger research community are critical to U.S. innovation and national security. He suggested that we are entering a time when the importance of national labs is growing because the United States is in nation-state competition with China, with technology as a key component. He said that the easiest way to catch up with the United States is to steal intellectual property.

In his counterintelligence work, Durant has seen theft from multiple countries. In some cases, collaborations were highly advantageous for foreign collaborators but gave little advantage to the United States. Adversaries use researchers as nontraditional collectors of information. In many cases, foreign researchers cannot decline participation in collection efforts when approached by their home country’s law enforcement or internal security services. Theft also occurs through traditional covert information collection and cyber intrusions. Competitors also purchase companies to gain use of technology that was developed at national labs. One of the challenges in sharing information with the research community is that not all scientists have a security clearance, and not all are able to recognize what could be a dual-use technology.

Durant does not believe that maintaining the status quo or banning all foreign (or Chinese) researchers will solve the problem. Instead, the answer is better risk management and a better relationship between the Intelligence Community and researchers, so that trust can be established, awareness can be raised, and information can better be shared. There are many unclassified things that we can be doing research on collaboratively. However, the United States may have to identify key technologies essential to U.S. economic and national security and draw a “counterintelligence fence” around technologies that may inadvertently contribute to the development of foreign weapons or nuclear programs. The United States must have a more proactive, defensive counterintelligence program. There must

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³ The NSTSR was briefed on the survey of scientists of Chinese descent in the article Caught in the crossfire: Fears of Chinese-American scientists, Y. Xie, X. Lin, J. Li, Q. He, and J. Huang, Proceedings of the National Academy of Sciences, 120(27)e2216248120.

be a trusted security partner in the system of research who would have a security clearance and be in a position to proactively flag risks. Durant said that research security was an uphill battle 8 years ago, but that growing awareness of research security issues has made the situation better.

William Evanina (formerly of the National Counterintelligence and Security Center) discussed research security in intelligence and law enforcement agencies. He said that the United States stands out because of its research capacity and its ability to innovate and develop technology. It is a benefit to our country that talented people from around the world want to come to work in U.S. research institutions.

After the events of September 11, 2001, Evanina began working on cases of academic espionage. At that time, the threat was principally coming from three countries targeting cutting-edge university research: China, Iran, and North Korea. Two forums acted as conduits for the beneficial flow of information between federal intelligence agencies, industry, and academia: the National Security Business Alliance Council (NSBAC) and the National Security Higher Education Advisory Board (NSHEAB). The NSBAC comprised 100 industry chief executive officers with top secret clearance, who partnered with the Federal Bureau of Investigation (FBI) and Central Intelligence Agency (CIA) to share information about the techniques and tactics of corporate espionage. Separately, NSHEAB, a forum of 25 university presidents and chancellors with top secret clearance, partnered with the FBI and CIA to share information about foreign interference on campuses. NSHEAB also allowed the FBI and CIA to better understand why basic research and international collaboration is important.

Evanina said that between 2013 and 2017, after NSHEAB and the NSBAC ceased to exist, dialogue between government and industry ceased. At the same time, there was an amplification of collection efforts on university campuses and a whole-of-nation approach developed by China. The U.S. government was receiving more and more leads on malign activity, such as intellectual property theft. In 2017, Evanina said that the DOJ began calling their work in this space the China Initiative because

92 percent of the investigations involved China. Around this time, the Office of Science and Technology Policy (OSTP) began engaging with the intelligence community on the issue of research security. In 2019, as director of the National Counterintelligence and Security Center, Evanina partnered with the OSTP director, Kelvin Droegemeier, to bring together the FBI and 125 university presidents and chancellors to share stories of interference on campuses. By the end of the meeting, there was agreement that action needed to be taken.

Solutions to the challenges of research security should be driven by the university community, and Evanina said that university compliance programs are key. Universities’ inability to vet individuals from other countries is a challenge, and the United States has to do a better job of due diligence before we bring foreign individuals on campus.

DISCUSSION

Fingar cited both Durant and Evanina from their comments about an “increased threat,” and asked how the threat is measured. Evanina responded that there is an increase in the amount of cyber and human resources China puts into these efforts. He said that China’s focus is advanced manufacturing, biosciences, artificial intelligence, and quantum technologies, and that if a U.S.-based researcher is working in these areas, they will be a target of the Chinese Communist Party. China has stated this publicly. The U.S. government, Evanina said, “has to do a better job of educating and informing what the Chinese intentions are.” Durant said that it is not that measures being taken by academia and others are ineffective, but that the evolving threat poses a dynamic challenge. He said that we must develop a way to share information on threats more widely in a nonclassified manner.

Fingar asked what unclassified data are available to provide an indication of the number of cases resulting in a transfer of knowledge that improved Chinese threat capacity. Durant said that it is a challenge to provide such data. He said we need to evaluate illicit theft in terms of how detrimental they are to the United States from both national and economic security perspectives. He suggested that it is more difficult to determine the effects on economic security. Evanina said that there is a significant loss each year in the United States attributable to the Chinese Communist Party and that we need platforms like NSHEAB for shared information between the intelligence and academic communities.

Maria Zuber (Massachusetts Institute of Technology) said that universities are not investigative bodies, and that they count on the federal government to vet foreign individuals wishing to come into the United States by, for example, not issuing a visa to a problematic individual. She noted that universities often receive inquiries from federal agencies for information already in the possession of other federal agencies. She agreed that there is a need for better information sharing but said that there is also a need for more clarity on the responsibilities of universities and the federal government. Evanina said that, right now, no one is vetting a scientist in China, Iran, or Russia before they apply for a job at a company or university. He said that the United States has 300,000 students every year from China, and that the State Department does not have overseas capabilities to fully investigate their backgrounds. He said that there should be a place in government that those in the private sector and universities could contact to conduct due diligence on a potential hire. Zuber said that there was discussion in the previous U.S. administration about requiring “extreme vetting” of international students. She cautioned, however, that the costs of such vetting cannot be factored into indirect cost rates. If universities had to pay that cost directly, many could not afford to hire foreign talent. Evanina said the government came close to establishing a national vetting center in 2020. Durant said that the government has very little information about foreign students. In his view, vetting is better left to universities because they have the most information about students’ activities and what they have access to.

John Gannon (formerly of the National Intelligence Council) said that the climate created under the China Initiative and its assumptions, including that the researcher community was guilty of working with the Chinese government in illicit ways, led researchers to feel they were under suspicion. He posited that it was that climate, in addition to complaints that the initiative discriminated against Chinese American and Chinese-born researchers and the fact that actual prosecutions were very few, that led to the initiative’s termination. Evanina suggested that the China Initiative has not been terminated. Instead, it continues to operate under a different name. He said that the number of investigative leads on foreign interference in S&T has increased 25 percent since 2020 and that there are twice as many agents and attorneys working cases now than there were in 2020. He said that the FBI does not target particular ethnicities or “go searching” for cases; rather, the FBI opens investigations on the basis of information received from universities. Gannon asked whether recent cases occurred more in universities or more in the private sector, positing that there are very

few cases in universities. Evanina said that the China Initiative was about more than just academic institutions.

Durant said that national security investigations proceed at a much different pace and in a much different way than criminal investigations. In his experience, more cases are being conducted as national security investigations by intelligence professionals in an ordered process that follows the evidence. Rebecca Keiser (National Science Foundation) said that NSF continues to work closely with the DOJ on many cases, noting that, in the last several years, there have been more civil settlements than criminal prosecutions. Nevertheless, the volume of cases is very large, and she has meetings every day to discuss cases.

Jason Donovan (U.S. Department of State) referred to claims that Chinese students who receive Chinese government funding to study in the United States are obliged to report their research activities to their consulate or embassy on a regular basis. He suggested that such researchers are treated as potential targets by their home government. Evanina advocated that Chinese students have access to information from our open society so that they are not “prisoners of China while they’re here in the U.S.”