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Wednesday, August 31, 2011

Could the DoJ authorize cyber privateers?

Not only are our cyber laws placing us at a tremendous advantage, but U.S. companies must also be held to a higher standard when it comes to doing business abroad. Today's headline WSJ story (front page, top of the fold) talks about criminal investigation of Oracle for dealings with Western and Central African countries. The handcuffs are called the Foreign Corrupt Practices Act (FCPA) of 1977. Tough to do business when everyone has his hand out. Kind of like my experience in Chicago circa 1973. Don't ask.

Then in the early 1980s, I was sitting in a Washington, D.C. restaurant trying to do business with a high-ranking government official, who said, "We won't be doing business until I get my deal." Don't worry. We didn't do business.

Yep, tough to do business when everyone has his hand out. But in the midst of all the baloney, there is a sliver of hope as I find another precedent buried in the FCPA law. Here, the Justice Department can actually pre-authorize (wink-wink) "bribery" under certain conditions:
GUIDANCE FROM THE GOVERNMENT
The Department of Justice has established a Foreign Corrupt Practices Act Opinion Procedure by which any U.S. company or national may request a statement of the Justice Department's present enforcement intentions under the anti-bribery provisions of the FCPA regarding any proposed business conduct. The details of the opinion procedure may be found at 28 CFR Part 80. Under this procedure, the Attorney General will issue an opinion in response to a specific inquiry from a person or firm within thirty days of the request. (The thirty-day period does not begin to run until the Department of Justice has received all the information it requires to issue the opinion.)  Conduct for which the Department of Justice has issued an opinion stating that the conduct conforms with current enforcement policy will be entitled to a presumption, in any subsequent enforcement action, of conformity with the FCPA. Copies of releases issued regarding previous opinions are available on the Department of Justice's FCPA web site.
I am particularly impressed with the 30-day fast-track (highlighted in red above). The "jailhouse lawyer" in me contends this could be a partial precedent for issuance of a cyber privateering confiscation effort. Or it could at least give a bonding authority the get-out-of-jail-free card to authorize a cyber-looting action.

Just a thought.

Too bad Oracle didn't obtain a DoJ opinion before trying to do business in Africa. Then again, maybe they did and it will come out as they're crafting their defense.

Interestingly, if you want to look at previous FCPA opinions, click here. If you want a real knee-slapper, check out this link, where the U.S. Government got permission (wink-wink) to bribe (er, hire as a director) one or more representatives of a foreign government for a project. Hey Oracle, I hope your legal counsel is reading these things!

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Implementation suggestions for THE MORGAN DOCTRINE are most welcome. What are the "Got'chas!"? What questions would some future Cyber Privateering Czar have to answer about this in a Senate confirmation hearing?