National Security Law Today

A recent cyber attack involving SolarWinds software and multiple government agencies is at the center of the current cyber policy debate. This attack, now publicly attributed to Russia, was highly targeted and stayed undetected for months. What does this attack say about America’s readiness to defend against malicious cyber actors? Is this our wake up call?

Sean Joyce is Global and US Leader for PwC’s Cybersecurity, Privacy, and Forensics Practice. Previously, Sean was the Chief Trust Officer at Airbnb, and most notably served as the Deputy Director of the FBI, supporting both Bob Mueller and Jim Comey.

This episode references:

California Consumer Privacy Act (CCPA)

https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=3.&part=4.&lawCode=CIV&title=1.81.5

European Union General Data Protection Regulation (GDPR)

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679

Child Online Protection Act

https://www.congress.gov/bill/105th-congress/house-bill/3783/text

National Security Law Today Episode: Six Pillars of Cyber Deterrence with Suzanne Spaulding

https://podcasts.apple.com/us/podcast/six-pillars-of-cyber-deterrence-with-suzanne-spaulding/id1276946676?i=1000468912637

National Security Law Today Podcast Episode: Protecting Democratic Institutions Pt.1 with Suzanne Spaulding and Elizabeth Rindksoph Parker

https://podcasts.apple.com/us/podcast/protecting-democratic-institutions-part-1-suzanne-spaulding/id1276946676?i=1000416176303

Communications Decency Act, Section 230

https://www.law.cornell.edu/uscode/text/47/230

Foreign Agents Registration Act

https://www.justice.gov/nsd-fara

Comparison Chart: CCPA and GDPR

https://www.bakerlaw.com/webfiles/Privacy/2018/Articles/CCPA-GDPR-Chart.pdf

The Justice Department’s enforcement of the Foreign Agents Registration Act is the most aggressive in decades. Enacted in 1938, FARA “requires certain agents of foreign principals who are engaged in political activities or other activities specified under the statute to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.”

With greater enforcement, lawyers and their clients need to know today how this law applies to them. What are lawyers' responsibilities and obligations under FARA? What are the best practices to comply with the law?

David Laufman, partner at Wiggin & Dana LLP and former Chief of Counterintelligence & Export Control in the DOJ National Security Division (responsible for FARA enforcement) explains FARA for lawyers and law firms in this program.

This episode references:

Kleptopia: How Dirty Money is Conquering the World

https://www.harpercollins.com/products/kleptopia-tom-burgis?variant=32121952829474

National Security Law Today “Politics of Putin: Why he's attacking NATO, the EU, and America's free and fair elections” September 3, 2020

https://www.americanbar.org/groups/law_national_security/nslt/20200903-politics-of-putin-1/

Foreign Corrupt Practices Act Overview

https://www.justice.gov/criminal-fraud/foreign-corrupt-practices-act

28 U.S.C. § 1350 (Alien Tort Statute)

https://www.law.cornell.edu/uscode/text/28/1350

2021 National Defense Authorization Act

https://www.govtrack.us/congress/bills/116/hr6395/text

Beneficial Ownership in the NDAA

https://wp.nyu.edu/compliance_enforcement/2020/12/14/congress-to-include-significant-expansion-of-beneficial-ownership-disclosure-requirements-for-u-s-companies-and-non-u-s-companies-registered-to-do-business-in-the-united-states-as-a-part-of-the-2021/

“IRS: Sorry, but It’s Just Easier and Cheaper to Audit the Poor” ProPublica, October 2, 2019

https://www.propublica.org/article/irs-sorry-but-its-just-easier-and-cheaper-to-audit-the-poor

Tom Burgis is an is an investigations correspondent at the Financial Times and an author

https://www.harpercollins.com/blogs/authors/tom-burgis

This episode references:

Kleptopia: How Dirty Money is Conquering the World

https://www.harpercollins.com/products/kleptopia-tom-burgis?variant=32121952829474

Suspicious Activity Reports (SAR)

https://www.occ.treas.gov/topics/supervision-and-examination/bank-operations/financial-crime/suspicious-activity-reports/index-suspicious-activity-reports.html

FINCen Geographic Targeting Order (GTO), Reissued November 4, 2020

https://www.fincen.gov/sites/default/files/shared/508_Real%20Estate%20GTO%20Order%20FINAL%20GENERIC%2011.4.2020.pdf

“Tower of Secrets: The Russian Money Behind a Donald Trump Skyscraper” Financial Times, July 11, 2018

https://www.ft.com/trumptoronto

2021 National Defense Authorization Act

https://www.govtrack.us/congress/bills/116/hr6395/text

Tom Burgis is an is an investigations correspondent at the Financial Times and an author

https://www.harpercollins.com/blogs/authors/tom-burgis

Following the riot at the U.S. Capitol on January 6th, we spoke with longtime national security professors and practitioners William Banks, Mary DeRosa and Harvey Rishikof about the many different security threats and legal implications of last week's events.

This episode references:

National Security: Emerging Critical Issues CLE Webinar Series

https://cvent.me/BNXmX5

The 25th Amendment

https://www.law.cornell.edu/constitution/amendmentxxv

Articles of Impeachment introduced in the House

https://cicilline.house.gov/sites/cicilline.house.gov/files/documents/ARTICLES%20-%20Final%201030%20-%20011121.pdf

Mayor Bowser’s Letter to U.S. Department of Homeland Security Acting Secretary Chad Wolf Regarding Inauguration Preparations

https://mayor.dc.gov/release/mayor-bowser%E2%80%99s-letter-us-department-homeland-security-acting-secretary-chad-wolf-regarding

18 USC § 2384, Seditious conspiracy

https://www.law.cornell.edu/uscode/text/18/2384

18 USC § 2381, Treason

https://www.law.cornell.edu/uscode/text/18/2381

18 USC § 2383, Rebellion or insurrection

https://www.law.cornell.edu/uscode/text/18/2383

52 USC § 20511

https://www.law.cornell.edu/uscode/text/52/20511

40 USC § 5104, Unlawful activities [in the United States Capitol Buildings and Grounds]

https://www.law.cornell.edu/uscode/text/40/5104

"If Trump pardons himself now, he’ll be walking into a trap" Asha Rangappa, Washington Post, January 8, 2021

https://www.washingtonpost.com/outlook/trump-raffensperger-pardon-prosecute/2021/01/06/a32388fe-4f9d-11eb-bda4-615aaefd0555_story.html

FBI Statement Before the House Oversight and Reform Committee. "Confronting White Supremacy" June 4, 2019

https://www.fbi.gov/news/testimony/confronting-white-supremacy

"Hate Crimes in U.S. Rose to Highest Level in More Than a Decade in 2019" New York Times, November 16, 2020

https://www.nytimes.com/2020/11/16/us/hate-crime-rate.html

"Pelosi asks Joint Chiefs about preventing Trump from launching nukes" Politico, January 8, 2021

https://www.politico.com/news/2021/01/08/pelosi-trump-take-away-nuclear-codes-456529

"Amazon Will Suspend Hosting For Pro-Trump Social Network Parler" Buzzfeed News, January 9, 2021

https://www.buzzfeednews.com/article/johnpaczkowski/amazon-parler-aws

"From ‘beautiful’ to ‘disgraceful’: World reacts to Capitol riots" Atlanta Journal-Constitution, January 7, 2021

https://www.ajc.com/news/nation-world/from-beautiful-to-disgraceful-world-reacts-to-capitol-protests/JONZQYHFKZFQ5GKOUP4QHOK2XE/

"Kim Jong Un Calls U.S. North Korea's 'Biggest Enemy,' Vows To Advance Nuclear Arsenal" NPR, January 9, 2021

https://www.npr.org/2021/01/09/955192283/kim-jong-un-calls-u-s-north-koreas-biggest-enemy-vows-to-advance-nuclear-arsenal

Past NSLT podcasts on

Impeachment

https://www.americanbar.org/groups/law_national_security/nslt/20191219-impeachment-national-security-and-the-law/

The Mueller Report

https://www.americanbar.org/groups/law_national_security/nslt/20190502-what-have-we-learned-from-the-mueller-report-part1/

Pardons

https://www.americanbar.org/groups/law_national_security/nslt/20201203-pardons-clemency1/

Domestic Terrorism

https://www.americanbar.org/groups/law_national_security/nslt/20210107-domestic-terrorism/

The Insurrection Act

https://www.americanbar.org/groups/law_national_security/nslt/20200605-insurrection-act/

William Banks is a professor at Syracuse Law School and the Chair of the ABA Standing Committee on Law and National Security

http://law.syr.edu/profile/william-banks1

Mary DeRosa is a professor at Georgetown University Law Center and the Chair of the Advisory Committee

https://www.law.georgetown.edu/faculty/mary-b-derosa/

Harvey Rishikof is the Director of Policy and Cyber Security Research at the University of Maryland ARLIS and the Senior Counselor to the Committee

https://www.aspeninstitute.org/our-people/harvey-rishikof/

Seth Jones is a Senior Adviser at CSIS and terrorism researcher discusses the growing terror threat from domestic political extremists - a threat that played out in the assault of the US Capitol on January 6, 2021

This episode references:

The ABA President's Statement on the violence at the Capitol

https://www.americanbar.org/news/abanews/aba-news-archives/2021/01/statement-of-aba-president-patricia-lee-refo-re--violence-at-the/

"Pro-Trump mob storms US Capitol in bid to overturn election" AP, January 7, 2021

https://apnews.com/article/election-2020-joe-biden-donald-trump-elections-electoral-college-78104aea082995bbd7412a6e6cd13818

Senate Hearing "Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?" October 28, 2020

https://www.commerce.senate.gov/2020/10/does-section-230-s-sweeping-immunity-enable-big-tech-bad-behavior

Seth Jones "The War Comes Home: The Evolution of Domestic Terrorism in the United States" October 22, 2020

https://www.csis.org/analysis/war-comes-home-evolution-domestic-terrorism-united-states

Hunting in the Shadows The Pursuit of Al Qa'ida Since 9/11

https://wwnorton.com/books/9780393081459

In the Graveyard of Empires: America's War in Afghanistan

https://www.amazon.com/Graveyard-Empires-Americas-War-Afghanistan/dp/0393338517

A Covert Action: Reagan, the CIA, and the Cold War Struggle in Poland

https://www.amazon.com/Covert-Action-Reagan-Struggle-Poland/dp/0393247007

How Terrorist Groups End: Lessons for Countering al Qa'ida

https://www.rand.org/pubs/monographs/MG741-1.html

Seth Jones is the Director of the Transnational Threats Project and a Senior Adviser in the International Security Program at the Center for Strategic and International Studied (CSIS)

https://www.csis.org/people/seth-g-jones

This week we discuss the must-pass National Defense Authorization Act which funds much of the defense and national security operations in the US and would add some interesting new cybersecurity protections. This year's bill is unusually controversial, with fights about social media regulations threatening the smooth passage of the legislation.

This episode references:

The 2021 National Defense Authorization Act

https://www.govinfo.gov/content/pkg/BILLS-116hr6395enr/pdf/BILLS-116hr6395enr.pdf

"Trump says he will veto $740 billion defense bill, breaking with Republican-led Senate" CNBC, December 17, 2020

https://www.cnbc.com/2020/12/17/trump-says-he-will-veto-defense-bill.html

Cyberspace Solarium Commission

https://www.solarium.gov/

"Six Pillars of Cyber Deterrence with Suzanne Spaulding," NSLT Podcast, March 19, 2020

https://www.americanbar.org/groups/law_national_security/nslt/20200319-six-pillars-of-cyber-deterrence/

"Senate approves defense bill establishing cyber czar position, subpoena power for cyber agency" The Hill, December 11, 2020

https://thehill.com/policy/cybersecurity/529888-senate-approves-defense-bill-establishing-cyber-czar-position-subpoena

FireEye Hack Explainer

https://www.fireeye.com/blog/threat-research/2020/12/evasive-attacker-leverages-solarwinds-supply-chain-compromises-with-sunburst-backdoor.html

"How suspected Russian hackers outed their massive cyberattack" Politico, December 16, 2020

https://www.politico.com/news/2020/12/16/russian-hackers-fireeye-cyberattack-447226

"How does CISA and the intelligence community protect American elections? With Dan Sutherland" NSLT Podcast, October 8, 2020

https://www.americanbar.org/groups/law_national_security/nslt/20201008-cisa-elections-voting-security/

"Public Service and National Security with Avril Haines and Paul Lekas" NSLT Podcast, April 16, 2020

https://www.americanbar.org/groups/law_national_security/nslt/20200416-public-service-and-national-security/ 

Section 230 of the Communications Decency Act

https://www.law.cornell.edu/uscode/text/47/230

Andrew Borene is Managing Director for the US Public Sector at Cybereason

https://www.american.edu/spa/faculty/borene.cfm

Adam Pearlman is the Founder and Managing Director of Lexpat Global Services

https://www.lexpatglobal.com/staff_trusted/adam-pearlman/

Sometimes presidents have pardoned famous or controversial figures, stirring up news stories and even Congressional hearings. And we ask the biggest pardon question of them all: can the president pardon himself?

This episode references:U.S. Constitution, Art. II, Sec. 2https://constitution.congress.gov/browse/article-2/section-2/

Congressional Report, Justice Undone: Clemency Decisions in the Clinton White House, May 14, 2002. [In Three Parts]

https://www.govinfo.gov/content/pkg/CRPT-107hrpt454/pdf/CRPT-107hrpt454-vol1.pdf

https://www.govinfo.gov/content/pkg/CRPT-107hrpt454/pdf/CRPT-107hrpt454-vol2.pdf

https://www.govinfo.gov/content/pkg/CRPT-107hrpt454/pdf/CRPT-107hrpt454-vol3.pdf

Congressional Hearing, Use and Misuse of Presidential Clemency Power for Executive Branch Officials, July 11, 2007https://fas.org/irp/congress/2007_hr/clemency.pdf

28 CFR § 1.1 - 1.11https://www.law.cornell.edu/cfr/text/28/part-1

Presidential or Legislative Pardon of the President (August 5, 1974)

https://www.justice.gov/olc/opinion/presidential-or-legislative-pardon-president 

Helen Bollwerk worked as an attorney in the Justice Department Office of the Pardon Attorney

Longtime former pardon attorney Helen Bollwerk explains that while the pardon power is solely at the discretion of the president, there are also lots of procedural regulations and judicial precedents that influence who gets pardoned.

This episode references:

U.S. Constitution, Art. II, Sec. 2

https://constitution.congress.gov/browse/article-2/section-2/

28 CFR § 1.1 - 1.11

https://www.law.cornell.edu/cfr/text/28/part-1

Ex parte Wells, 59 U.S. (18 How.) 307 (1855)

https://supreme.justia.com/cases/federal/us/59/307/

Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866)

https://supreme.justia.com/cases/federal/us/71/333/

Carlesi v. New York, 233 U.S. 51 (1914)

https://supreme.justia.com/cases/federal/us/233/51/

Burdick v. United States, 236 U.S. 79 (1915)

https://supreme.justia.com/cases/federal/us/236/79/

Ex parte Grossman, 267 U.S. 87 (1925)

https://supreme.justia.com/cases/federal/us/267/87/

Hoffa v. Saxbe, 378 F. Supp. 1221 (D.D.C. 1974)

https://law.justia.com/cases/federal/district-courts/FSupp/378/1221/2124607/

Schick v. Reed, 419 U.S. 256 (1974)

https://www.oyez.org/cases/1974/73-5677

United States v. Noonan, 906 F.2d 952 (3d Cir. 1990)

https://casetext.com/case/us-v-noonan

Office of the Pardon Attorney in the Department of Justice

https://www.justice.gov/pardon

Helen Bollwerk worked as an attorney in the Justice Department Office of the Pardon Attorney.

The podcast hosts discuss the ongoing troubles with the presidential transition, and why that's a security risk, along with the shakeups at the highest levels of CISA.

This episode references:

9/11 Commission Report [PDF]

https://govinfo.library.unt.edu/911/report/911Report.pdf

The Presidential Transition Act of 1963 [PDF]https://www.govinfo.gov/content/pkg/STATUTE-78/pdf/STATUTE-78-Pg153.pdf

CRS Report "Presidential Transitions: Issues Involving Outgoing and Incoming Administrations" May 17, 2017https://fas.org/sgp/crs/misc/RL34722.pdf

Joint Statement from Elections Infrastructure Government Coordinating Council & the Election Infrastructure Sector Coordinating Executive Committees, November 12, 2020https://www.cisa.gov/news/2020/11/12/joint-statement-elections-infrastructure-government-coordinating-council-election