Excerpt from my 2009 book, Al Qaeda Goes to College
By the summer of 2006, FBI interest in Rider, and in many another university with far more extensive research labs than our modest teaching-university boasts, had shifted away from an obsession with biohazards to concern for intellectual-property theft by foreign faculty and graduate research assistants. Whether agents of terror or of rival foreign states, these aliens were suddenly seen to be ---potentially --- the enemy within our ivory towers.
At the time, Rider having yet again been visited by the bureau, I conducted a comparison of higher education’s IP policies and procedures, as against those in the U.S. entertainment industry. Initially, I turned to a Philadelphia lawyer of substantial stature for guidance.
In his thousand-dollar suit and expensively-coiffed steel-gray hair, IP attorney Kelly Tillery does not bring Black Sabbath’s Ozzy Osbourne to mind. All the same, the rock star played a part in making Tillery a top intellectual-property lawyer with an international law firm, Philadelphia’s Pepper Hamilton.
Shortly after he graduated from the University of Pennsylvania’s law school, Tillery was retained by Winterland Productions to put a stop to ‘Black Sabbath’ rip-off merchandise. Since then, the middle-aged litigator has represented Bruce Springsteen, Madonna and the Rolling Stones.
He also represents his law school alma mater. Penn’s Wharton School in particular has something in common with all Tillery’s rock and roll clients. People want to exploit a famous name. Tillery lives to stop them. “Some people have the right to use the ‘Wharton’ name. Others want to reap what they haven’t sown. When a bad guy misuses the name, that’s when I seek an injunction.”
Tillery takes pride in what he does. Still, he worries that his efforts are sometimes too little, too late. Those worries are centered not around trademarked names, but rather the trade secrets with which university researchers deal daily. “The reason why something is called a ‘trade secret’ is because nobody else knows it. If I steal the formula for Coke and publish it, it’s gone,” he explained. “You can’t put the genie back in the Coke bottle.”
Transfer that rule into the arena of weapons of mass destruction, and Tillery’s world view gets very scary, very fast. “In 10 seconds, terrorists can put the formula or the design on the web – at virtually no cost – and make it available to six billion people. Law enforcement will take weeks to shut their site down.”
Mixing his metaphors, Tillery added, “I catch the bad guys and hang them after they’ve stolen the horse. But in the case of a trade secret the horse can’t be put back into the barn.”
I told Tillery about a new FBI program, aimed at keeping the horses safely in their stalls – the College and University Security Effort (CAUSE), which is overseen by the FBI’s economic-counterintelligence section. The attorney’s reaction? “On one hand, it scares the hell out of me to have the FBI on college campuses. There was a time – my era – when agents were breaking into professor’s offices to steal their secrets.”
He hastily added, however, “If the agency’s goal is to protect information, then it’s a noble goal.” Just so, Tom Mahlik assured me. Section Chief of the FBI’s Domain Support and Counterintelligence Strategy Section in Washington, Mahlik said CAUSE is the centerpiece of the agency’s effort to combat information theft in the Global Village.
He explained that his section was struggling with an “asymmetric threat.” From a counterintelligence specialist’s perspective, the Cold War was an easier time. Professional spies operated out of U.S., Russian and Chinese embassies and consulates. All sides knew who one another were. The game was played by the rules. When the Cold War ended, the rules went the way of the Berlin Wall.
Globalization enables collectors of information to take advantage of the openness with which research is conducted on university campuses. Add to this higher education’s extensive use of engineers and scientists – especially post-docs – from around the world, and all the ingredients for technology theft are in place. The CI section’s noble cause is to raise consciousness before those ponies in our research barns are gone.
Mahlik cited the example of a notable university in the southeastern U.S. where one of his teams toured a high-tech lab staffed primarily by South Koreans, Indians, and “oddly enough,” Portuguese researchers. “My investigators asked, ‘If this work goes commercial, which countries are our top competitors?’ You guessed it: South Korea, India, and Portugal.”
He continued, “Probing a little deeper, we learned that the lead investigator was frequently invited back to his home university in Korea to lecture. Sometimes the whole family received a paid vacation as part of the package. This was happening pre-publication, pre-patent, pre-licensing.” University officials, he added, expressed surprise, when this severe security risk was pointed out.
Solutions, Mahlik admitted, are limited. “Non-disclosure agreements for starters,” he suggested. “They at least create a platform on which to have a discussion with scientists. From there, every situation requires a ‘right’ mitigation strategy.” Mahlik himself worried that America’s technological superiority is slipping away, and to him the struggle is “asymmetric.” The advantage lies with the enemy.
Meanwhile, Mahlik added, “The last thing we want to do is roll onto a campus for the first time in the midst of a crisis. That just aggravates the culture clash. We want to be preemptive rather than reactive.”
IP, Espionage and Terror: A Seamless Web?
So just how exposed is American IP? Three years ago, the late Professor Cory Fine of the University of North Florida and I conducted a study of higher ed’s intellectual property policies. Our conclusion was published in a 2003 issue of the Journal of Intellectual Capital. “Clearly, legitimate corporate concern should exist that financial investment in research is likely, in many cases, not protected beyond the standard university/corporate contract initiated between the funding sponsor and the principal investigator(s).” Some cases on point:
In June 2002, two former post-docs admitted to stealing trade secrets from Harvard Medical School’s cell biology department. Jiangyu Zhu and Kayoko Kimbara were arrested in California after absconding with reagents used in the development in immunosuppressive drugs to control organ rejection. The criminal complaint said they also stole information about gene therapies for cardiovascular and nervous-system disorders. Their crime was “all in the family.” The two were married. It was alleged that the couple sent three genes home to Japan to help a biomed company develop antibodies. E-mail was their weapon of choice.
In 2004 a Texas Tech University scientist was convicted of mishandling bubonic plague and sentenced to two years in prison. He was also ordered to pay a $15,000 fine and $38,000 restitution to his institution. According to university spokesmen, the former chief of the Health Science Center’s infectious diseases department, Dr. Thomas Butler, engaged in “shadow contracts” with drug companies without the school’s knowledge.
Last, but not least, note the lawsuit filed in 2006 by a bio-tech company against a scientist at the University in Connecticut. Sequoia Sciences’ suit alleged that Dr. Thomas Wood violated a confidentiality agreement involving “biofilm inhibitor,” when he spoke in July ’06 at a conference of the International Union of Microbiological Societies.
This “variety pack” of cases spanning the temporal distance from Nine-Eleven to the near-present indicate both the range of dirty deeds and mixed motives, including loyalty to another nation, malicious intent, and plain old greed, which alone or in combination lead otherwise valuable research scientists to become threats to university, and sometimes even national, security.
That Uncle Sam sees a seamless web is demonstrated by the subsequent establishment of the National Intellectual Property Rights Coordination Center, which brings together disparate law enforcement, immigration and commercial agencies of the federal bureaucracy:
Response to Growing Threat
In recent years, the threat to intellectual property rights (IPR) has grown in magnitude and complexity. Industry and trade associations estimate that counterfeiting and piracy cost the U.S. economy in excess of $200 billion per year and more than 750,000 American jobs. However, as great as the monetary loss is, the loss of technological superiority and trade competitiveness to U.S. trademark and copyright owners is immeasurable.
The business community is not the only victim. Counterfeit, substandard or tainted products that are disguised as trusted brands pose a major threat to public health and safety. Substandard, tainted goods such as food products (both human and pet consumables), pharmaceuticals (both lifestyle and life-saving drugs), aircraft or automobile parts, toys and baby furniture, and building and manufacturing components have been the subject of seizures and public recalls.
The impetus behind this burgeoning threat has always been the tremendous profits realized in the sale of counterfeit goods. Criminal organizations take advantage of established smuggling infrastructures and routes to move everything from toothpaste and handbags to surgical supplies and life-saving medicines.
Partnership in Action
The National Intellectual Property Rights Coordination Center (IPR Center) has been the federal government’s central point of contact in the fight against IPR violators and the flow of counterfeit goods into the commerce of the United States since 2000. The new center in Northern Virginia is the high-tech home of a partnership between government, private industry and law enforcement communities.
The Department of Homeland Security’s U.S. Immigration and Customs Enforcement and Customs and Border Protection, Health and Human Services’ Food and Drug Administration, the Department of Justice’s FBI, the Department of Commerce and U.S. Postal Inspection Service are partners to:
• More effectively use member agencies’ authorities and resources to combat the global threats to public safety and national security posed by the importation into the U.S. of counterfeit, substandard and tainted products.
• Jointly manage investigative leads and coordinate investigations and operations nationally and internationally for maximum impact.
• Enhance working relationships with existing and emerging industries to identify the threats to intellectual property and trademarks.
• Provide comprehensive training to domestic and international law enforcement agencies on investigative best practices to broaden IPR protection and expand transnational enforcement capabilities.
The IPR Center serves as a fusion point for intelligence on IPR violations from other government agencies, industry, transportation providers and others. The IPR Center partners employ a three-pronged strategy in the fight against intellectual property crime:
The investigative prong of the IPR Center strategy focuses not only on keeping counterfeit products out of the United States, but also on identifying and dismantling the criminal organizations behind this activity.
IPR Center partners act on this intelligence to track down sources of counterfeit goods, identify smuggling and trade routes, and seize the merchandise at critical points before it enters the U.S. marketplace.
A critical step in fighting intellectual property rights violations is interdicting the flow of counterfeit goods-stopping the flow of goods into U.S. commercial markets and onto U.S. streets. The globalization of trade has made protecting our domestic marketplace an increasingly complex challenge.
Training and Outreach
The third prong of the IPR Center strategy focuses on prevention of intellectual property crime by providing outreach and training to the public and our private and law enforcement partners.
For industry stakeholders, both domestic and international, the IPR Center serves as a clearinghouse for information on trends in counterfeiting and smuggling, sharing information and receiving tips and information on new methods that criminal organizations are employing. In addition, the IPR Center provides training for domestic and international law enforcement agencies on investigative best practices, with the goal of building awareness of IPR violations and expanding enforcement capabilities.
For more information contact:
The National Intellectual Property Rights Coordination Center
2451 Crystal Drive, Suite 200
Arlington, VA 22202
Web site: www.ice.gov