Craig's Corner For Counsel: National Security

Sunday, July 1, 2007 - 01:00

This month we are delving into the issue of national security and how it affects us in the corporate environment. A new book written by David Kris and Doug Wilson, National Security Investigations and Prosecutions , which will be released this summer, provides a unique perspective for us.

David Kris served as associate deputy attorney general with the Department of Justicewhere he was one of the authors of the Patriot Act. He is currently deputy general counsel and chief ethics and compliance officer at a Fortune 50 company headquartered in New York. Doug Wilson is currently working at the Department of Justice, where he is an assistant United States attorney. Together they provide unique operational insight on the Patriot Act, other national security laws, and how these laws affect citizens and our businesses.

I recently caught up with David in New York and asked him to share his insights with readers of The Metropolitan Corporate Counsel .

Craig Miller: David, why is it important for corporate counsel to know about how national security laws affect their work and their company's safety?

David Kris: From the perspective of in-house counsel, the most significant aspect of the book is that it describes and explains the federal government's power and limitations in the area of national security investigations. For any telecommunications, software or high-tech company that collects customer information - and especially for communications companies - issues may arise when the government requests or demands information from the company. For example, the FBI may contact a company with a court order for electronic surveillance - wiretapping or bugging - under the Foreign Intelligence Surveillance Act (FISA), or a court order for law-enforcement wiretapping, or a "national security letter." Corporate counsel must also be mindful of "Section 215 orders" - orders authorized under Section 215 of the Patriot Act, that are issued by a secret court to compel the production of almost any tangible records (these Section 215 orders in particular have been the subject of public protests by libraries). All of these investigative tools require a company to produce certain information and prohibit the company from disclosing this production to the public.

But the law in this area is complex - different kinds of information are covered to different degrees by different statutes - and corporations face potential legal liability and reputational damage if they provide too little information, or too much, or otherwise mishandle the request. Obviously, refusing to comply with a request or demand from the government can be risky, although there are some established mechanisms for bringing legal challenges. But blind compliance may also be risky, and companies have been sued by private parties and customers for allegedly providing too much information to the government. Companies need to know exactly what they can and should do when they receive a request or demand from the government. Some companies maintain sub-units within their legal departments to serve as a liaison with the government. This book provides step-by-step guidance that will be helpful to them and to others who face these kinds of issues; it lays out the various investigative tools that are available to the government, explains how they work, what they can be used for and how they can be challenged.

Craig Miller: Is safeguarding corporate technology one of the greater issues in our future ?

David Kris: Protection of technology is very important. In fact, some businesses depend on confidential technology and technological developments. At the same time, some of the technology a company holds may be helpful to the government in its national security operations. If a company is approached by the government and asked to provide certain technology, or to keep certain technology secret, there may be some difficult issues, including with respect to licensing. Our book is not about intellectual property, of course, but it may provide a helpful framework for thinking about IP issues in the context of national security. It should provide companies with an understanding of the importance of such requests from the government and could help corporate counsel craft and evaluate appropriate responses.

Thanks to David Kris , co-author of National Security Investigations and Prosecutions. The book will be available later this summer at west.thomson.com.

Additional national security information can be found in these Westlawdatabases:

Homeland Security and Anti-Terrorism - Texts and Periodicals ( HOMESEC-TP)

Homeland Security and Anti-Terrorism - Cases (HOMELAND-CS )

Sheshunoff: Special Report - USA PATRIOT Act: A Guide to Regulatory Compliance (USAPATRG)

Guide to Homeland Security ( HSASUM)

Sheshunoff: Bank Secrecy Act and Anti-Money Laundering Service ( BNKSEC )

USA Patriot Act of 2001 Legislative History - Arnold & Porter's Legislative History for the USA Patriot Act of 2001 (PATRIOT-LH)

Homeland Security Act of 2002 Legislative History - Arnold & Porter's Legislative History for the Homeland Security Act of 2002 ( HOMESEC-LH)