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Thursday, September 1, 2011

"Data exhaust" & DoJ right-to-bribe authorizations

Yesterday I wrote how a DoJ FCPA (Foreign Corrupt Practices Act) "enforcement opinion" is the legal way for U.S. companies to bribe the officials of foreign governments. A key provision of the FCPA law states:
Copies of releases issued regarding previous opinions are available on the Department of Justice's FCPA web site. 
Interestingly, very few companies have taken advantage of this "selling of indulgences" provision, as evidenced by the history of such activity since 1993 (click here to see the site). The "data exhaust" moment? Well, in nearly 17 years, the DoJ has issued a mere 34 "licenses to bribe" foreign nationals. There are no statistics detailing how many requests for a get-out-of-jail-free card were declined. If I were on some kind of congressional oversight committee (ie, if I had the patience to deal with acres of idiots), I'd be asking this question. Several possibilities emerge:

  1. The DoJ makes it hellishly hard to get the right to bribe; and/or
  2. The DoJ turns down a lot of requests; and/or
  3. The really smart bribery operations try to stay under the radar; and/or
  4. Major U.S. companies (and their highly paid attorneys) haven't done their homework to "know the ropes"
One thing is for sure: Oracle wasn't one of the firms requesting a get-out-of-jail-free card. While the requests were anonymized and the nature of the business was only vaguely described, none appeared to be a U.S. software company. I once asked Larry Ellison if maybe we should run some of our ads through legal. His answer: "Hell no; I've got a litigation department, so let 'em litigate!"

Well Larry, given the failure of your international law advisors to do their stinking jobs, you're "litigation department" has their work cut out for them.

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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?