Category Archives: U.S. Department of Justice (DOJ)

Preparing for AI Whistleblowers

by Charu A. Chandrasekhar, Avi Gesser, Arian M. June, Michelle Huang, Cooper Yoo, and Sharon Shaji

Top row: Charu A. Chandrasekhar, Avi Gesser, and Arian M. June
Bottom row: Michelle Huang, Cooper Yoo, and Sharon Shaji
(Photos courtesy of Debevoise & Plimpton LLP)

As artificial intelligence (“AI”) use and capabilities surge, a new risk is emerging for companies: AI whistleblowers. Both increased regulatory scrutiny over AI use and record-breaking whistleblower activity has set the stage for an escalation of AI whistleblower-related enforcement. As we’ve previously written and spoken about, the risk of AI whistleblowers is rising as whistleblower protections and awards expand, internal company disputes over cybersecurity and AI increase due to a lack of clear regulatory guidance, and public skepticism mounts over the ability of companies to offer consumer protections against cybersecurity and AI risks.

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Head of DOJ Criminal Division Announces Voluntary Self-Disclosure Program for Individuals at PCCE’s 10th Anniversary Conference

On April 15, 2024, the NYU Law Program on Corporate Compliance and Enforcement (PCCE) held its 10th Anniversary Conference, featuring keynote speakers Nicole Argentieri, Principal Deputy Assistant Attorney General and Head of DOJ’s Criminal Division; Gurbir Grewal, Director of Enforcement, SEC; and Andrea Griswold, Deputy U.S. Attorney, SDNY, among other distinguished speakers. More information on the conference can be found here. At the conference, Principal Deputy Assistant Attorney General Argentieri first announced a new voluntary self-disclosure program for individuals. A blog post by her, which describes the program and provides links to more information, is republished below.

©Myaskovsky: Courtesy of NYU Photo Bureau

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Cross-Border Implications of the FCA’s Consultation Paper on Publishing Information About the Opening and Progress of Investigations

by Michael A. Asaro, James Joseph Benjamin Jr., Ezra Zahabi, and Joe Hewton

From left to right: Michael A. Asaro, James Joseph Benjamin Jr., Ezra Zahabi, and Joe Hewton. (Photos courtesy of Akin Gump Strauss Hauer & Feld LLP).

Last month, the United Kingdom Financial Conduct Authority (FCA) announced that it is considering new procedures under which it would publicly identify firms that are under investigation as soon as the investigation has been opened.[1] The consultation period closes on April 30, 2024. (See our recent client alert here). The proposed new approach—which, if adopted, would be a dramatic break from historical practice—would result in public disclosure before any charges have been filed and before the FCA has determined whether the firm actually did anything wrong. In this article, we draw comparisons between the investigation disclosure regimes in the U.K. and the United States. We also provide commentary on the FCA’s proposals.

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A Whole New National Security Ballgame: Key Practical Takeaways for Export Control Compliance from the 2024 BIS Update Conference

by Brent Carlson and Michael Huneke

From left to right: Brent Carlson and Michael Huneke (Photos courtesy of authors)

On March 27–29, 2024, the U.S. Department of Commerce’s Bureau of Industry & Security (“BIS”) hosted an Update Conference on Export Controls & Policy. The event was a major outreach effort by the U.S. government. Nearly 100 BIS and other U.S. agency officials engaged with 1,200 attendees over three days.

As was appropriate for an event coinciding with Opening Day of the U.S. Major League Baseball season, BIS officials emphasized that they—and those they regulate—are playing a whole new national security ballgame. This theme ran through every topic. It also drives the key practical takeaways that we highlight below for in-house compliance professionals assessing evasion and diversion risks and responding to reports of the same—particularly reports that some U.S. companies recently received directly from the U.S. government. Continue reading →

Executive Order Prohibits Transfer of Sensitive Personal Data to “Countries of Concern”

by Patrick J. Austin and John Pilch

From the left to right: Patrick J. Austin and John Pilch

On February 28, 2024, U.S. President Joe Biden issued Executive Order on Preventing Access to Americans’ Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern (EO), which authorizes the U.S. Attorney General to restrict large-scale transfers of personal data to “countries of concern.” The “countries of concern” identified in the EO include China (along with Hong Kong and Macau), Russia, Iran, North Korea, Cuba and Venezuela, according to a summary issued by the White House.

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Monitoring What Matters: A Fresh Look Proposal to Government and Industry for How Post-Resolution Oversight Can Best Deny Hostile Actors the Means to Cause Deadly Harm

by Brent Carlson and Michael Huneke

From left to right: Brent Carlson and Michael Huneke (Photos courtesy of authors)

U.S. economic sanctions and export controls serve a wide range of national security interests. When hostile actors rely on U.S.-designed or -manufactured components in weapons used in fatal attacks on U.S. and coalition military personnel and civilian populations, there is an acute need to quickly identify the illicit trade flows and stop those components from reaching the battlefield. Continue reading →

Blockchain Analytics: A Reliable Use of Artificial Intelligence for Crime Detection and Legal Compliance

by Sujit Raman and Thomas Armstrong

From left to right: Sujit Raman and Thomas Armstrong. (Photos courtesy of authors).

Everyone these days is talking about artificial intelligence and how to use it responsibly. Among law enforcement and compliance professionals, discussions around the responsible use of AI are nothing new. Even so, recent advances in machine learning have turbocharged AI’s transformative potential in detecting, preventing, and—in a particular sense—even predicting illicit activity. These advances are especially notable in the field of blockchain analytics: the process of associating digital asset wallets to real-world entities.

In a recent, pathbreaking opinion and order, U.S. District Judge Randolph Moss rejected a criminal defendant’s challenge to the government’s evidentiary use of blockchain analytics to link him to illicit financial activity.[1] Many courts—including, just a few days ago, a U.S. district court in Massachusetts[2]—have relied on the validity of blockchain analytics when taking pre-trial actions like issuing seizure orders and authorizing arrest warrants; Judge Moss’s opinion is the first trial court examination of this powerful analytic capability. Taken together, this growing body of legal authority forcefully affirms the reliability—and therefore admissibility in court—of evidence derived from such analytics.

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A Thousand Pilot Programs Bloom: DOJ Pushes Forward to Further Welcome Whistleblowers

by Max Rodriguez

Max Rodriguez (photo courtesy of author)

Not even three months into the new year, the Department of Justice has announced three new pilot whistleblower programs that meaningfully incentivize whistleblowers to come forward and bring new information to the government’s attention. These programs have the potential to help supercharge DOJ’s already-substantial enforcement capabilities and fill a much-needed gap for whistleblowers, who were limited to reporting information to subject matter-specific agency programs or only pursuant to individual enforcement authorities under DOJ’s purview like the False Claims Act.

Still, details matter, and implementation is everything. Many questions remain about how these programs will work in practice, and how they will interact with other overlapping or abutting whistleblower programs. These overlaps and details will present challenges for the government and for attorneys representing whistleblowers to minimize the risk and maximize the reward for their clients.

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Recent Regulatory Announcements Confirm Increased Scrutiny of “AI-Washing”

by Tami Stark, Courtney Hague Andrews, Maria Beguiristain, Joel M. Cohen, Daniel Levin, Darryl Lew, and Marietou Diouf

Top (left to right): Tami Stark, Courtney Hague Andrews, Maria Beguiristain, and Joel M. Cohen
Bottom (left to right): Daniel Levin, Darryl Lew, and Marietou Diouf (Photos courtesy of White & Case LLP)

In December 2023, we published an alert concerning US Securities and Exchange Commission (“SEC”) Chair Gary Gensler’s warning to public companies against “AI washing” – that is, making unfounded claims regarding artificial intelligence (“AI”) capabilities.[1] It is no surprise that since then regulators and the US Department of Justice (“DOJ”) have repeated this threat and the SEC publicized an AI related enforcement action that typically would not get such emphasis.

In January 2024, the SEC’s Office of Investor Education and Advocacy issued a joint alert with the North American Securities Administrators Association and the Financial Industry Regulatory Authority warning investors of an increase in investment frauds involving the purported use of AI and other emerging technologies.[2] Similarly, the Commodity Futures Trading Commission Office of Customer Education and Outreach issued a customer advisory warning the public against investing in schemes touting “AI-created algorithms” that promise guaranteed or unreasonably high returns.[3]

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Department of Commerce, Department of the Treasury, and Department of Justice Tri-Seal Compliance Note: Obligations of foreign-based persons to comply with U.S. sanctions and export control laws

by the Department of Commerce, Department of the Treasury, and Department of Justice

Photos of authors

OVERVIEW

Today’s increasingly interconnected global marketplace offers unprecedented opportunities for companies around the world to trade with the United States and one another, contributing to economic growth. At the same time, malign regimes and other bad actors may attempt to misuse the commercial and financial channels that facilitate foreign trade to acquire goods, technology, and services that risk undermining U.S. national security and foreign policy and that challenge global peace and prosperity. In response to such risks, the United States has put in place robust sanctions and export controls to restrict the ability of sanctioned actors to misuse the U.S. financial and commercial system in advance of malign activities.

These measures can create legal exposure not only for U.S. persons, but also for non-U.S. companies who continue to engage with sanctioned jurisdictions or persons in violation of applicable laws. To mitigate the risks of non-compliance, companies outside of the United States should be aware of how their activities may implicate U.S. sanctions and export control laws. This Note highlights the applicability of U.S. sanctions and export control laws to persons and entities located abroad, as well as the enforcement mechanisms that are available for the U.S. government to hold non-U.S. persons accountable for violations of such laws, including criminal prosecution. It further provides an overview of compliance considerations for non-U.S. companies and compliance measures to help mitigate their risk.

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