National Security Law Archives

OFAC Expands Reporting Requirements

On June 21, the Office of Foreign Assets Control (OFAC) issued an interim final rule (IFR) substantially revising sanctions reporting regulations. The most significant amendment was to OFAC’s rejected transactions reporting rule, which now, for the first time, applies not just to U.S. financial institutions, but also to U.S. businesses, nonprofits, and individuals. The rule also appears to apply to foreign entities owned or controlled by U.S. persons. Public comments on the IFR are due by July 22, 2019.

Emerging Tech Law & Policy

Huawei and the U.S.-China Tech War

After talks with China’s president at the G20 summit in Japan, President Trump announced on June 29 that “he would allow” U.S. companies to continue to sell “product” to Huawei. The statement, construed by some as a “concession” or “reversal” of U.S. policy toward Huawei, has generated confusion and disagreement from China “hawks” in Congress and elsewhere. This rundown of Huawei legal and policy issues discusses the presidential statement, its lack of legal effect to date, its context, and why technology industry stakeholders need to understand the complete U.S.-China technology picture to navigate developments and mitigate risk.

Foreign Investment in the United States

CFIUS Orders Grindr’s Chinese Owner to Divest

Is a dating app a national security asset? Yes, in some cases. Foreign investment in U.S. businesses that collect and maintain U.S. citizens’ sensitive personal data is subject to national security reviews by CFIUS. From social networking to financial services to healthcare to consumer retail, companies across sectors collect, maintain, and have access to the sensitive personal data of U.S. citizens. The implications of the personal data-national security nexus are potentially wide-ranging for foreign investment in U.S. businesses.

CFIUS

U.S.-China Tech War: Whole of Government Legal Strategy

The U.S. government has adopted and is implementing a “whole-of-government” strategy to counter China. The whole-of-government approach entails a range of legal and policy measures to curb China’s access to U.S. technology, by lawful and unlawful means. These measures include, but are not limited to, stricter curbs on foreign investment in U.S. technology; restrictions on exports of “emerging technologies” like artificial intelligence; exclusions of Chinese firms from U.S. government and private supply chains through company bans; prosecutions of intellectual property theft; measures to counter “academic espionage” in American academic and research institutions; and, indirectly, and, indirectly, sanctions enforcement.

United States China Law and Policy

Huawei Ownership and the Foreign Agents Registration Act

The United States has adopted a whole-of-government approach to counter China’s “economic aggression” or “economic espionage,” umbrella terms that encompass a range of conduct including IP theft, forced technology transfer, academic espionage, and influence operations in the United States. The whole-of-government approach illustrates that the most strategically significant and complex confrontation between the United States and China is not the “trade war.” Rather, the race to dominate future technologies like artificial intelligence and 5G underpins the most complex legal and policy issues between the two nations. The U.S.-China tech war, and the United States’ whole-of-government strategy, has put Chinese technology companies under the hot light of U.S. legal and political scrutiny. Companies like Huawei and ZTE, relative unknowns in the United States until recently, have found themselves on the wrong side of U.S. law enforcement.

Academic Research

Proposed Legislation Would Restrict Foreign Participation in Academic Research

The “Protect Our Universities Act of 2019” is a a bill “to create a task force within the Department of Education to address the threat of foreign government influence and threats to academic research integrity on college campuses, and for other purposes.” Among other things, the Bill would restrict foreign student participation in federally funded academic research deemed “sensitive” to national security.

Foreign Agents Registration Act

Nonprofit Organizations and the Foreign Agents Registration Act

FARA was enacted in 1938, but only recently entered the public consciousness through the Special Counsel’s investigation of Trump campaign and administration officials. Following the indictment of Paul Manafort for FARA and other violations, and Michael Flynn’s remedial registration under FARA after his previously undisclosed work on behalf of foreign governments came to light, lobbyists, public relations professionals and law firms, among others, reportedly were moved to register as foreign agents or assess their FARA registration obligations

National Security Law

DOJ China Initiative: Academia, Research & Tech

On national security grounds, the United States is developing and implementing a whole-of-government approach to maintain the country’s technological edge through legal and policy measures to restrict Chinese access to U.S. technology and intellectual property, including by: (1) limiting or prohibiting certain foreign investment and commercial transactions; (2) adopting export controls on emerging technologies; (3) instituting supply chain exclusions; (4) curbing participation in academic and other research; and (5) combating cyber intrusions and industrial and academic espionage.[2] Additionally, concerns about Chinese government influence have spurred proposals to regulate the activities of entities viewed as Chinese government influence operators.

United States China Law and Policy

U.S.-China Trade, Technology & Global Policy Issues: INFOGRAPHIC

This graphic depicts key issues between the United States and China, as identified by the United States as of January 26, 2019. This is not an exhaustive depiction, but captures key categories and sub-categories of Chinese state and private practices, state policies, and state structural characteristics that are the subject of U.S. government complaints (as raised from within and outside of the Trump Administration).