National security issues have always been a top priority for the United States. While traditionally limited to safeguarding the nation’s borders against foreign threats and terrorism, national security threats today also encompass novel issues such as cyber-crimes, cyber-attacks, and other internet-based crimes. The Department of Justice’s Criminal Division is the leading federal entity responsible for rooting out national security threats, including safeguarding the nation against cyber threats from both within the nation and abroad.
National security threats pose severe consequences to the federal government, U.S. companies, and individuals. It harms the economy, the security of the government, and society as a whole. As a result, securing the nation’s intelligence, data, military, infrastructure, and other sensitive information is a top priority for federal agencies. Violations of federal statutes such as the Foreign Corrupt Practices Act (“FCPA”) can lead to significant criminal penalties, jail time, and reputational harm.
Top Priorities for U.S. National Security
Companies in today’s globalized economy are rightfully concerned about data privacy. Privacy is a significant national security concern both for businesses and the federal government. Its breach can wreak havoc on U.S. intelligence, military, and data. For instance, data privacy breaches can occur where sensitive data is leaked to outside sources or where inside personnel misuse their credentials and take advantage of their access to such information. To counteract such threats, companies must act proactively by utilizing comprehensive measures to secure its data and protect its operations.
Cyber-crimes are occurring at a rapid pace as the sophistication of the Internet grows and the potential for online scams, hacks, or other threats increases. This makes it imperative for businesses to stay one step ahead of these cyber risks. Cybersecurity controls remain a priority. The FBI, as the leading federal agency for investigating cyber-crimes, makes clear that cyber-crimes threaten public safety and economic security, and any perpetrators will face consequences for malicious online activity. Companies have responded by establishing strong internal controls, attentive management, and robust computer checks that can identify and correct online threats.
Clear Cryptocurrency Regulation
The crypto sphere—while loosely or inconsistently regulated—is nevertheless an active area for aggressive government investigation and prosecution. Cryptocurrencies offer ease in trade, encryption, privacy, and adaptability, which makes its use preferred for many companies. Criminals know this too. As the nation continues to struggle with COVID, the FBI warns that there may be a rise in scams involving cryptocurrencies, the scams of which likely prey upon public fear of the pandemic in order to steal personal information. Therefore, companies using cryptocurrencies as a payment method or means of value transfer need to safeguard their operations against fraud as well as stay abreast of new government regulations.
Comprehensive Screening Process for Certain Foreign Nationals
Federal agencies such as the DOJ have emphasized the importance of proper screening procedures for foreign individuals entering the nation allegedly for certain employment or for school due to the potential for these individuals to infiltrate companies and steal information. Over the past several years, individuals have been prosecuted for infiltrating U.S. entities and acting as arms of foreign countries. Proper screening procedures are vital measures to utilize.
Robust Policies Against Bribery, Corruption, and Espionage
Bribery, corruption, and espionage can destroy the national security interests of the United States. The SEC has noted that enforcement of the FCPA is a top priority for the agency. Generally, the FCPA prohibits paying bribes to foreign officials in order to assist in obtaining or retaining business. The Economic Espionage Act of 1996 prohibits anyone from acquiring trade secrets to benefit a foreign government or foreign enemy. Bribery, corruption, and espionage all have the ability to cause significant harm to the United States. Companies who regularly work with foreign entities and public officials should ensure that they have robust internal controls and compliance policies in place to guard against these risks and penalties.
Checks on Foreign Investment
Foreign investment within the nation can produce great wealth, business potential, and collaboration. However, foreign investment can often be a source of national security concerns for the United States. For this reason, the Committee on Foreign Investment in the United States (“CFIUS”) is authorized to review certain transactions that involve foreign investment in the United States and certain real estate transactions by foreign persons in order to protect U.S. national security interests. Companies that are considering foreign investment must ensure that they address all national security concerns before accepting foreign investments.
Reducing Risks with Defense and Government Contracting
Defense and government contracting pose substantial threats to national security interests. The federal government, as well as the defense contractors it employs, must ensure that their plans do not pose a danger to national security whether due to the nature of the work involved, the individuals that need to be involved in the operations, the sensitivity of the data, or the potential for foreign government interference.
Eliminating Drug Trafficking
Drug trafficking involves the production, manufacture, distribution, and sale of illicit drugs. It is often a lucrative source of income for organized crime groups, the profits of which are often used to criminally acquire firearms, finance terrorism, or create other national security threats. The Organized Crime Drug Enforcement Task Force (“OCDETF”), overseen by the Attorney General and the DOJ, seeks to reduce the supply of illicit drugs and other criminal activities involving drug trades.
What Can A National Security Defense Attorney Do for Me?
There are many ways a national security defense lawyer can assist with national security issues. Examples of how an attorney can help its clients resolve national security issues are presented below:
Developing a robust FCPA compliance policy;
Defending against corruption and bribery charges involving a foreign official;
Assisting with anti-corruption investigations;
Navigating a review by CFIUS regarding foreign investments;
Handling necessary import/export controls;
Communicating with Customs and Border Protection (“CBP”) regarding import and export compliance issues;
Defending against cyber-crime investigations;
Handling novel defense issues such as cryptocurrency regulation;
Resolving cross-border disputes; and
Working with government entities such as the DOJ, FBI, Department of Defense (“DOD”), and the Department of Homeland Security (“DHS”) regarding other national security issues on your behalf.
“If a certain transaction, operation, or business plan gives rise to a national security threat, it must be promptly addressed and managed to avoid negative consequences. A national security defense attorney should always be consulted where there are doubts as to whether national security will be impacted. A national security defense lawyer can provide personalized legal advice and assist companies and governmental entities with developing robust compliance policies and monitoring procedures.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.
Maintaining national security is vital for the stability of the nation. Threats to national security can lead to economic downturns, government instability, frauds, public insecurity, cyber-crimes, and foreign threats such as terrorism, as some examples. Federal agencies remain especially vigilant of national security threats as the nation battles the unprecedented consequences of the coronavirus. Therefore, it is critical that governmental entities, U.S. companies, and individuals act proactively to guard against these risks by establishing clear policies that identify and promptly correct threats.
Oberheiden P.C. © 2020 National Law Review, Volume XI, Number 47