The U.S. Department of Justice [DOJ] is pivoting from its now past approach to investigating and prosecuting intellectual property-related issues concerning China. Notably, the DOJ is attempting to balance the need for the United States to continue to attract research talent from abroad, encourage international collaboration and, at the same time, ensure that there won't be abuse. Moreover, the DOJ is concerned regarding a perception of civil rights violations in the United States relating to the treatment of Asian-Americans and Chinese nationals arguably connected to some of the DOJ's activities. [More, here.] Today, Assistant Attorney General Matthew Olsen delivered remarks outlining the broad strokes of the new U.S. approach. Here are some of his comments:
The PRC Threat
As you can see from these examples, we at the Justice Department confront threats from a variety of nation-state actors. Our new strategy reflects this reality — there is no one threat that is unique to a single adversary.
At the same time, it is clear that the government of China stands apart. So, I want to address how the department’s approach to Chinese government activity fits within our overall strategy.
As the FBI Director publicly noted a few weeks ago, the threats from the PRC government are “more brazen [and] more damaging than ever before.” He is absolutely right: the PRC government threatens our security through its concerted use of espionage, theft of trade secrets, malicious cyber activity, transnational repression, and other tactics to advance its interests — all to the detriment of the United States and other democratic nations and their citizens around the world.
To be clear, we are focused on the actions of the PRC government, the Chinese Communist Party, and their agents — not the Chinese people or those of Chinese descent. As we talk about the threats that the PRC government poses to the United States, we must never lose sight of that fundamental distinction. We must always be vigilant to ensure that no one is treated differently based on race, ethnicity, familial ties, or national origin. This is a foundational commitment of the Department of Justice.
I’ll give you a few examples of what the PRC government is doing.
First, it has targeted U.S. citizens with connections to the intelligence community to obtain valuable government and military secrets. In recent years, we have prosecuted four espionage cases involving the PRC, reflecting a concerted effort to steal our most sensitive information.
Second, the government of China has also used espionage tools and tactics against U.S. companies and American workers to steal critical and emerging technologies. Agents of the PRC government have been caught stealing everything from cutting-edge semiconductor technology to actual seeds that had been developed for pharmaceutical uses after years of research and the investment of millions of dollars.
Third, the PRC government has used malicious and unlawful cyber campaigns to pursue technological advancement and profit. The PRC reaps the benefits of these criminal activities, while the victims, including governments, businesses and critical infrastructure operators, lose billions of dollars in intellectual property, proprietary information, ransom payments and mitigation efforts.
Finally, China’s government has gone to great lengths to silence dissent. It has intimidated journalists and employed a variety of means to attempt to censor and punish U.S. citizens, residents, and companies for exercising their rights to free expression. I mentioned earlier Operation Fox Hunt — the PRC’s illegal effort to coerce the return of certain Chinese dissidents to China — which is just one example.
Against this backdrop, the department announced the “China Initiative” in 2018. The idea behind the initiative was to develop a coherent approach to the challenges posed by the PRC government. The initiative effectively focused attention on the multi-faceted threat from the PRC. But it has also engendered growing concerns that we must take seriously.
I want to take this opportunity today—discussing our approach to nation-state threats overall—to also address the China Initiative directly.
We have heard concerns from the civil rights community that the “China Initiative” fueled a narrative of intolerance and bias. To many, that narrative suggests that the Justice Department treats people from China or of Chinese descent differently. The rise in anti-Asian hate crime and hate incidents only heightens these concerns. The Department is keenly aware of this threat and is enhancing efforts to combat acts of hate. These efforts are reflected in the Attorney General’s memorandum issued last year following the enactment of the COVID-19 Hate Crimes Act.
There are also increasing concerns from the academic and scientific community about the department’s pursuit of certain research grant fraud cases. We have heard that these prosecutions — and the public narrative they create — can lead to a chilling atmosphere for scientists and scholars that damages the scientific enterprise in this country.
Safeguarding the integrity and transparency of research institutions is a matter of national security. But so is ensuring that we continue to attract the best and the brightest researchers and scholars to our country from all around the world — and that we all continue to honor our tradition of academic openness and collaboration.
In light of these concerns, we began a review soon after I took office. The review’s purpose was forward-looking. The key question was whether this framework still best serves the strategic needs and priorities of the department. While I remain focused on the evolving, significant threat that the government of China poses, I have concluded that this initiative is not the right approach. Instead, the current threat landscape demands a broader approach.
I want to emphasize my belief that the department’s actions have been driven by genuine national security concerns. But by grouping cases under the China Initiative rubric, we helped give rise to a harmful perception that the department applies a lower standard to investigate and prosecute criminal conduct related to that country or that we in some way view people with racial, ethnic or familial ties to China differently.
I began my career as a trial attorney in the Civil Rights Division. The department is committed to protecting the civil rights of everyone in our country. But this erosion of trust in the department can impair our national security by alienating us from the people we serve, including the very communities the PRC government targets as victims. Our reputation around the world for being a country dedicated to civil rights and the rule of law is one of our greatest strengths.
As part of this review, I have paid particular attention to cases involving academic integrity and research security. When it comes to these cases, the National Security Division will take an active supervisory role in the investigations and prosecutions. In evaluating cases moving forward, NSD will work with the FBI and other investigative agencies to assess the evidence of intent and materiality, as well as the nexus to our national or economic security. These considerations will guide our decisions — including whether criminal prosecution is warranted or whether civil or administrative remedies are more appropriate.
In addition, the White House Office of Science and Technology has released new guidance to federal funding agencies, including procedures to correct inaccurate or incomplete prior disclosures. These agencies have primary responsibility for research integrity and security. Where individuals voluntarily correct prior material omissions and resolve related administrative inquiries, this will counsel against a criminal prosecution under longstanding department principles of prosecutorial discretion.
Make no mistake, we will be relentless in defending our country from China. The Department will continue to prioritize and aggressively counter the actions of the PRC government that harm our people and our institutions. But our review convinced us that a new approach is needed to tackle the most severe threats from a range of hostile nation-states.
NSD’s Approach Moving Forward
Going forward, the National Security Division will pursue this work guided by our Strategy for Countering Nation-State Threats. Our recent experience confronting the varied threats posed by the Chinese government has shown that a multi-faceted challenge demands an integrated and multi-faceted response. We need to expand our approach to these threats by recognizing the capabilities of each hostile nation and the full spectrum of activity each country undertakes to achieve its goals. And we must align our capabilities, tools and resources with those across the federal government to meet and counter these threats.
Our work will be informed by three strategic imperatives.
First, we must continue to defend core national security interests and protect our most sensitive information and resources. We will continue to aggressively investigate and prosecute espionage, export control and sanctions violations, and interference with our critical infrastructure.
Second, we must protect our economic security and prosperity, including key technologies, private information about Americans and supply chains and industry. We will bring all tools to bear, including the regulatory authorities of the Committee on Foreign Investment in the United States and Team Telecom — as well as criminal process where appropriate — to prevent and mitigate harms from economic espionage, hostile manipulation and cyber-enabled malicious activity.
Third, we must defend our democratic institutions and values to ensure that the promise of freedom remains a reality in the face of rising authoritarianism. We remain steadfast in our commitment to preventing malign influence inside our borders and to promoting freedom of expression and democracy against corrupt and repressive forces.
As we move forward, the department remains committed to confronting any nation that threatens U.S. national security, economic security or our democratic institutions and freedoms.
We will use all the legal tools in our arsenal to combat these threats. The cornerstone of our work at the Justice Department is to investigate and prosecute crimes sponsored by hostile governments and their agents. This includes prosecuting state agents for espionage, hacking campaigns against our government and the private sector, and the repression of critics, as well as efforts to manipulate public discourse in the United States.
In addition to our criminal enforcement work, NSD will use our civil and administrative tools to mitigate threats from foreign investment activity and foreign interests that seek to secretly influence public opinion in the United States.
We also will support broader whole-of-government efforts — which include diplomatic engagement, the use of economic tools and resilience building in communities within the United States and abroad — to address these threats. We will reach out, along with our federal partners, to build trust with affected communities to understand their public safety needs, and to ensure they feel comfortable reporting crimes and incidents.
Finally, we will continue to engage with democratic allies to share information and to discuss how we can make our partner countries more secure. Together, we will develop strategies for effectively responding to these grave threats to the rule of law and to our economic integrity.
The United States is a beacon for people all over the world who seek to live in an open and democratic society. It is our duty in the National Security Division to protect the United States from the myriad threats we face, while staying true to the Constitution and the values of the Justice Department. I know that this commitment to securing equal justice while defending our national security is shared by everyone in the National Security Division and the Department of Justice. [The full comments are available, here.]