Academic Espionage: How International Trade Law Can Protect Higher Education

• Jurisdiction: United States,Federal
• Citation: Vol. 49 No. 1
• Publication year: 2021

Academic Espionage: How International Trade Law Can Protect Higher Education

Cameron Keen^*

Table of Contents

I. Introduction.......................................................................................213

A. The Story of Li Xiao-Jiang.................................................213
B. Academic Espionage: An Overview..................................215

II. Background.......................................................................................216

A. Techniques Used: Confucius Institutes and the Thousand Talents Plan.......................................................................216
B. United States Relations with China...................................220
C. United States Law: Past and Present Measures Taken to Combat Academic Espionage............................................223

III. Analysis............................................................................................227

A. Categorizing Academic Espionage Within International Law 227
B. General Espionage in International Law..........................228
C. Academic Espionage Under International Trade Law...... 230
D. International Trade Law: A Brief Overview......................230
E. Academic Espionage as Trade in Services: GATS, TRIPS, and the New WTO..............................................................234
F. Applying International Trade Law to Academic Espionage 235
G. Why United States Law is Underinclusive and Ineffective in Solving Issues Raised by Academic Espionage.................238

IV. Conclusion.......................................................................................239

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I. Introduction

A. The Story of Li Xiao-Jiang

In Atlanta, Georgia, neuroscientist Li Xiao-Jiang was at the peak of his professional career when his employment with Emory University was unexpectedly terminated in the summer of 2019.¹ Before Xiao-Jiang's employment was terminated, he worked with his wife and lab co-leader at Emory University for twenty-three years, conducting research related to Huntington disease.² Xiao-Jiang, a tenured professor known nationally for his research and leadership within his lab, worked alongside committed postdoctoral students engaged in creating pig and mouse models to study Huntington disease.³ In May 2019, however, Xiao-Jiang's career came to a sudden halt when the school notified him of his termination of employment.⁴ According to Xiao-Jiang's fellow researchers, university officials seized Xiao-Jiang's lab and confiscated computer files and documents while Xiao-Jiang was on leave in China.⁵ Xiao-Jiang was stunned. In a statement following his termination, Xiao-Jiang exclaimed, he "was shocked that Emory University would terminate a tenured professor in such an unusual and abrupt fashion and close [their] combined lab consisting of a number of graduates and postdoctoral trainees without giving [him] specific details for the reasons behind [his] termination."⁶ Emory claims it followed the direction given by the National Institutes of Health (NIH) in a statement aimed at combating the "unacceptable breaches of trust and confidentiality that undermine the integrity of U.S. biomedical research."⁷

Emory University justified its actions by claiming it found evidence that Xiao-Jiang failed to make necessary disclosures related to his ties to China.⁸ Emory's

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statement regarding the termination of Xiao-Jiang's employment defended its actions, stating:

[t]hrough an internal investigation prompted by a letter that the NIH sent to many academic research universities, Emory discovered that two of its faculty members named as key personnel on NIH grant awards to Emory University had failed to fully disclose foreign sources of research funding and the extent of their work for research institutions and universities in China.⁹

Xiao-Jiang participated in the Thousand Talents Programme, a controversial program backed by the Chinese government that intends to attract acclaimed experts to work in China.¹⁰

Xiao-Jiang says he worries for his lab workers directed to leave the United States (one of which was pregnant at the time of Xiao-Jiang's sudden termination), and he also fears for the future of the hundreds of mice that were indispensable to his Huntington disease research.¹¹ The story of Xiao-Jiang, while certainly not the norm, reflects an increasingly common narrative of Chinese researchers across the United States.¹² Xiao-Jiang's story illustrates the narrative of academic espionage: the practice of stealing information related to research, national intelligence, or security under the guise of academic activity.¹³ College campuses have increasingly become primary targets for espionage. Researchers and government leaders are becoming more creative in their pursuits to steal information in the academic environment. As the threat of academic espionage rises, universities and U.S. lawmakers will continue to propose policies and legislation aimed at protecting the universities' intellectual property interests and national security.¹⁴ Despite these efforts, foreign operatives will continue to seek new ways to obtain information and surpass the United States in areas of technology and science.

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B. Academic Espionage: An Overview

Academic espionage poses a growing security threat that pervades research communities throughout the state of Georgia and the United States as a whole.¹⁵ China and other foreign countries exploit university campuses across the United States by soliciting intelligence and information related to technological advancements under the guise of academic research.¹⁶ The practice impacts U.S. relations with China as the U.S. government continues to navigate through a trade war created in large part by U.S. actions and spending behaviors.¹⁷ Chinese efforts to accelerate in the fields of manufacturing, science, and research have thwarted the U.S. desire to remain the dominant global power in the realm of technology and trade.¹⁸ Further, Chinese and U.S. desires to dominate emerging technologies in the international arena increase the complexity of this issue.

The United States passed legislation related to academic espionage, and newer proposals were discussed by members of Congress as recently as 2019.¹⁹ While passing legislation has the power to combat the threat of academic espionage, current and proposed laws fail to attack the problem in a comprehensive manner.²⁰ International law on espionage is complex, and scholars remain divided on how best to regulate spying, if regulations on spying should exist at all.²¹

This Note will first provide a background of the issue of academic espionage and describe efforts—current and proposed—by U.S. lawmakers. The background section will provide an overview of the threat of academic espionage while noting specific instances and schemes used by individuals involved in the practice. The background section will also provide a brief foundation of the current state of the relationship between the United States and China, the current

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trade war between the two countries, and how current discussions and negotiations may impact the desires of both countries to advance in technology and science.

Next, the Note will highlight the flaws within U.S. legislation related to academic espionage. Here, the Note will explain why international law and regulations must be implemented by the U.S. government to effectively combat the threat of espionage to U.S. institutions. This analysis will include viewing the issue of academic espionage through the lens of international trade law. Finally, this Note will conclude by advocating that states should create and enforce international trade laws to effectively solve the issues raised by academic espionage.

II. Background

Foreign operatives, located primarily in China, have increased efforts to steal information related to technology, research, and national security through academic exchanges.²² This practice, otherwise known as "academic espionage," continues to threaten U.S. academia.²³ The threat of academic espionage looms larger each day, and U.S. researchers and lawmakers have yet to determine an appropriate response to this unique threat.²⁴

A. Techniques Used: Confucius Institutes and the Thousand Talents Plan

Foreign operatives have found new techniques to steal information through academic activities—like the Confucius Institutes or the Thousand Talents Plan—even though specific information sought through these activities remains relatively unclear.²⁵ In an attempt to establish global dominance in technology and research, Beijing uses United States universities as virtual breeding grounds for spying and espionage.²⁶ According to the U.S. Defense Department, "nearly

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a quarter of all foreign efforts to obtain sensitive or classified information in 2014 were routed through academic institutions."²⁷

The installation of Confucius Institutes on university campuses nationwide exemplifies how foreign researchers presumably steal information from U.S. researchers.²⁸ Confucius Institutes function as schools funded by the Chinese government and are placed on college campuses in the United States.²⁹ Most Confucius Institutes teach classes in Mandarin, provide cultural education, and seek community involvement, though the purpose of the school varies from campus to campus.³⁰ The first Confucius Institute was implemented on a college campus in 2004, and at its peak, more than ninety Confucius Institutes existed in the United States.³¹

Although campuses are allowing more Confucius Institutes to set up throughout the United States, foreign intelligence experts warn of the dangers and risks associated with the programs.³² The concerns over Confucius Institutes intertwine with larger considerations regarding Chinese efforts to surpass U.S. strides in technology and security.³³ Christopher Wray, Director of the Federal Bureau of Investigation (FBI), addressed...