February 12, 2020

Legitimate Academic Pursuits or Illegal Espionage?

Understanding the Landscape of Foreign Ties to U.S. Academic and Scientific Research
Holland & Knight Alert
Jeremy M. Sternberg

A prominent professor at Harvard University, Charles Lieber, chair of the Harvard Chemistry Department, was arrested on Jan. 28, 2020, and charged with the federal crime of making a false statement to the government arising out of allegations that he failed to disclose research funding that he was receiving from a state-run university in China. At the same time, the U.S. Attorney's Office also charged others including a Chinese national, who had been a cancer researcher in Boston, with attempting to smuggle vials of samples for cancer research.

While the charge against the Harvard professor is the most recent and perhaps the most prominent, the federal government's concern about academic espionage, particularly regarding China's efforts through its "foreign talent programs," to further its economic prosperity, national security and intellectual property (IP) portfolio, at the expense of the United States, has been ongoing. For example, in August 2018, the head of the National Institutes of Health (NIH) wrote an open letter to NIH's partners in the research field noting "that some foreign entities have mounted systematic programs to influence NIH researchers and peer reviewers and to take advantage of the long tradition of trust, fairness, and excellence of NIH-supported research activities." The letter noted three primary areas of concern: 1) diversion of intellectual property, 2) attempts by foreign entities to influence NIH funding decisions, and 3) failure by NIH-funded researchers in the United States to disclose funding from foreign governments. In December 2018, NIH published a report from its Advisory Committee to the Director (ACD) working group regarding foreign influences on research integrity.

Despite these warnings, the message seems to still be filtering out to the relevant institutions, including universities, academic medical centers and beyond. In the past year, researchers and/or academics have been charged with crimes related to failures to disclose foreign funding at public and private universities. Moreover, major cancer research centers have terminated employees and been subject to investigation for the same issues.

Considerations and Takeaways

While China is at present the foreign country most aggressively pursuing efforts to exploit U.S.-based research for its own use, the issue is not limited to China. At a time when federal funding of research – particularly in areas that serve important national needs, such as national defense, health, energy, environment and agriculture – remains a vital part of the budgets of many universities and academic medical institutions, it is critical to address the government's concerns about disclosure by awareness, training and monitoring. These steps could include:

  • education about the need to disclose foreign support, international affiliations and international collaborations
  • training for faculty/researchers (and not just foreign nationals, but all relevant individuals)
  • documenting and monitoring items that are taken by faculty and students from labs/research facilities
  • developing guidelines for safely and securely hosting visiting scholars
  • updating policies to include additional controls and compliance regarding disclosure, physical and cyber and IP security

The criminal charges against Lieber and others demonstrate that these concerns are not merely "academic," but from the government's perspective implicate our national security and are thus being taken very seriously, including by resort to the criminal justice system.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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