Harvard Professor Arrested for Allegedly Hiding Ties to China: What Universities Can Do to Protect National Security While Promoting an Open Academic Environment
By Behnam Dayanim, Scott M. Flicker, Charles A. Patrizia, Robert P. Silvers, Talya Hutchison & Holly S. Flynn
On January 28, 2020, Charles Lieber, chair of the Chemistry and Chemical Biology Department at Harvard University, was arrested and charged with making false statements to U.S. Government agencies regarding his ties to Wuhan University of Technology (“WUT”). On the same day, two Chinese nationals who worked as researchers in Massachusetts were separately indicted for their involvement in transferring sensitive research to China.
The issues presented by joint Chinese-U.S. academic research activities are not new, as illustrated by the separate case of the
The new enforcement environment raises difficult questions for universities and other research institutions. They must adhere to the law, while also protecting the open and inclusive environments that define their communities. Below, we provide brief descriptions of the most recent arrests and outline steps universities and research institutions can take to support their learning ecosystems while complying with U.S. law and national security regulations.
Recent Enforcement against Individuals
According to the FBI affidavit in support of the
Participating in such a program with a Chinese university is not itself unlawful. Rather, the U.S. government indicted Lieber because, as part of securing simultaneous research grants from the Department of Defense (“DOD”) and the National Institutes of Health (“NIH”), he allegedly made false statements to those agencies to conceal the extent of his involvement in the Thousand Talents Program.
During the time that Lieber was receiving funding from WUT, he also received over $18 million in research grants from the DOD and the NIH. Both of these agencies require grant recipients to disclose foreign research collaboration and any foreign sources of funding. Lieber allegedly failed to disclose his collaboration with WUT scientists and the money he received from WUT. Furthermore, when both agencies inquired as to his affiliation with WUT, Lieber purportedly denied being a part of the Thousand Talents Plan and suggested that WUT exaggerated his role there. Because NIH inquired through Harvard University, Lieber also allegedly caused the university to make false statements. Harvard has announced that is initiating its own internal investigation.
Simultaneously with the Lieber arrest, U.S. authorities also arrested two researchers for allegedly smuggling sensitive research to China. The first researcher, Yangqing Ye, a Chinese national and People’s Liberation Army (“PLA”) officer, allegedly misrepresented her military position on her application for a J-1 non-immigrant visa, then passed sensitive documents obtained through her research at Boston University back to her PLA commanding officers. The second, Zaosong Zheng, a Chinese national who obtained a J-1 visa in order to conduct cancer research at Beth Israel Deaconess Medical Center (a teaching hospital of Harvard Medical School), was caught with vials containing biological specimens and other research materials stolen from his laboratory on a flight to Beijing.
Compliance Considerations for Research Universities
1. Confirm that research leads understand the requirement to disclose to the institution and to grant authorities any foreign support or funding or cooperation arrangements.
In 2018, federal agencies
Disclosure of foreign funding or foreign collaboration does not automatically cause an institution to forfeit federal funding. However, failure to disclose can be costly. A Michigan research institution, Van Andel Research Institute, agreed to pay $5.5 million in a
2. Assure the institution complies with requirements regarding foreign sources of funding.
Because research institutions submit disclosures on behalf of their researchers, the officers of such institutions must be able to identify potential subjects of Other Support or Foreign Component disclosures. Officers should work closely with researchers to keep track of all sources of funding for research projects and all foreign partner organizations so that the required disclosures can be made. The complaint against Lieber alleges that he caused Harvard University to make false statements. Research institutions can be held liable, under 31 U.S.C. § 3729(b)(1), for making false statements if they know about funding or collaborations that should be disclosed or demonstrate deliberate ignorance or reckless disregard for the truth of the same.
If a research institution determines that a previously-made statement was in fact false, it should confer with counsel and consider submitting a voluntary self-disclosure to the Department of Justice. The Department of Justice imposes lesser penalties (or even no penalties at all) on entities that disclose misconduct or errors in reporting in a proactive, timely, and voluntary manner.
3. Understand the regulatory framework for deemed exports when providing research results or summaries to foreign institutions and when working with researchers who are not U.S. nationals.
In addition to the reporting requirements described above, the U.S. government imposes certain limitations on sharing sensitive information and equipment with foreign nationals who are in the United States. Research institutions can comply with these limitations while attracting top talent from around the world and promoting an open learning environment.
Researchers collaborating on a cross-border project engage in exports when they share technical data with each other. Furthermore, when information is communicated to foreign nationals within the United States, the communication can constitute a “deemed export” if the information is subject to restrictions under U.S. export control laws. This can include sharing export-controlled information with graduate students and academics in the United States on a student or other visa. While “fundamental” academic research falls outside the scope of most export restrictions, the line between what is and is not permitted can be blurry. When results of research are to be published and shared broadly within the research community, that information likely is not controlled for export. However, the exclusion does not apply if the research is subject to proprietary or national security restrictions; for example, if the Department of Defense has restricted the results of a project it funded from public dissemination, a license would still be required if foreign nationals were to be involved in the project.
Certain categories of information are more sensitive and are subject to licensing requirements under the International Traffic in Arms Regulations (“ITAR”), regulating military technologies, or the Export Administration Regulations (“EAR”), regulating “dual-use” items that could have both military and civilian applications. Examples of such items include drone technology, radar and LIDAR, certain toxins or chemical agents, and microchips meeting certain specifications. Whether a license is required for a deemed export depends on (1) the item and (2) the nationality of the recipient. So that foreign nationals can continue to contribute to research projects, research institutions should have a program in place to identify license requirements and apply for licenses as needed.
4. Implement a strong insider threat program for the prevention of intellectual property theft and economic espionage.
The U.S. government
The National Insider Threat Task Force of the Office of the Director of National Intelligence has published an
5. Establish proactive relationships with Relevant U.S. Law Enforcement and Supervisory Agencies.
The Lieber case and accompanying indictments of Ye and Zheng show that the FBI is paying close attention to the international relationships of U.S. research teams, especially relationships with Chinese counterparts. It would benefit research institutions that maintain international ties to liaise proactively with the FBI and other relevant law enforcement or supervisory agencies before any criminal investigation or charges to identify potential areas of risk and to establish points of contact in advance of potential issues.
6. Consider providing training and posting appropriate polices to assure continued awareness.
The steps described above require ongoing awareness and participation on the part of every individual in a research institution. Many universities, including
In this current environment of increased scrutiny of research institutions and cross-border collaboration, universities would be well advised to undertake these steps to mitigate risk of U.S. law violations while ensuring the promotion of an open academic environment and research collaboration:
Identify your institution’s foreign collaborators and sources of funding;
Establish or enhance an export controls compliance program, including deemed exports considerations;
Implement a strong insider threat program;
Establish law enforcement relationships; and
Conduct regular trainings to promote awareness and understanding of these compliance issues.