Notice & Comment

Recapping the Homeland Security Institute – Part 1, by Nina Hart

On August 21–22, 2014, the American Bar Association, Section of Administrative Law and Regulatory Practice hosted the Ninth Annual Homeland Security Institute in Washington, D.C.  The Institute included panels on a wide variety of issues including immigration, border security, the Foreign Corrupt Practices Act, the SAFETY Act, government contracting, and the DHS priorities for the upcoming years.  No post can possibly do justice to the myriad topics discussed.  Instead, this two-part piece will attempt to 1) set out several major themes of the Institute and 2) focus on issues in immigration law.

Part One

An area of emphasis for numerous speakers at the Institute was the role of technology in national security.  This post will provide an overview of some of the benefits and issues flagged by the panelists that come with the advent of increasingly sophisticated technology.  These reflections come from the following presentations: Law Enforcement Agenda 2014; The Foreign Corrupt Practices Act: Doing Business Internationally; Support Anti-Terrorism by Fostering Effective Technology (SAFETY) Act; and DHS General Counsel’s Office: New Technology and Homeland Security.  A copy of the full agenda is here.  

Importance of Information Sharing

Partnership and coordination are essential to effective law enforcement and improved national security.  Not only can such sharing increase efficiency of operations, but it can also lead to more successful operations.  For instance, the U.S. Customs & Border Patrol (CBP) relies heavily on the procurement of advanced information from airlines and other domestic and international agencies to identify travelers who pose national security risks.  If this information on travelers can be obtained and evaluated early, the travelers who require further clearance can be notified before boarding airplanes or arriving in the United States to only then be turned away.  With over 360 million travelers each year, or roughly one million per day, identifying the risks before travel occurs greatly reduces security risks and improves efficiency for all involved parties and agencies.

Additionally, in the context of criminal prosecutions, international coordination can greatly improve the chances of successful investigations.  For example, in one instance, a photo found in Boston was shared with state and international agencies, and ultimately led to the discovery of a child abuser in the Netherlands.  Information from the international investigation also led to the identification of a criminal partner in Massachusetts.

The Rise of Big Data and Improved Agency/Entity Performance

An improved ability to collect information and generate statistics is an increasingly important tool for both agencies and entities subject to regulation.  First, data collection can help agencies identify areas where their procedures could be improved and identify shortfalls in the office.  For instance, CBP offices are gathering data to assess the workload of their agents and determine how many staffers are required.  According to John Wagner, the Acting Assistant Commissioner in the Office of Field Operations, to function most effectively, the CBP requires nearly 4,700 additional officers.

Further, collection of data may help agencies identify whether substantives policies should be reconsidered.  For example, during one panel it was suggested that there might be a link between the United States’ policy of deporting alien felons and subsequent problems of human smuggling and trafficking.  In order to look more deeply into this and other law enforcement issues, the United States is working with nations including Honduras to collect and share information.  While it is too early to say what the data will show, collecting it is the first step toward making the requisite assessment.

Shifts in how agencies share information can also change larger trends in law enforcement and the way in which entities and individuals should consider and respond to liability risks.  For example, since the early 2000s, use of the Foreign Corrupt Practices Act (FCPA) has dramatically increased.  In part, this is due to agencies making this an enforcement priority.  However, as agencies have increased their ability to gather information and emphasized coordination, FCPA charges are often no longer brought alone but in the context of larger investigations (e.g. antitrust).  Additionally, because the agencies have more recently named senior executives in addition to the companies, the liability risks for the entities and individuals have greatly increased.  Thus, it becomes all the more important for companies to work with counsel early to develop monitoring plans and to consider making early disclosures as a show of good faith in order to mitigate the chances of or extent of liability.

Increased Cybersecurity Risks

Undoubtedly, improved technology helps law enforcement officials carry out their duties effectively and efficiently.  Enhanced technology, however, is not given solely to law enforcement but to the public at large, which increases the chance that individuals wishing to carry out cybercrimes will be successful.  As one panelist pointed out, an anti-malware program is often effective only once and has an average life span of one week because it is so easy and inexpensive to create new malware.  There is no easy resolution for this security threat, but panelists highlighted two main points.  First, all entities should have and continue to update their detection systems to both prevent security breaches and to respond quickly to breaches that do occur.  One resource available to entities is the best practices for security management guides published by the DHS.  Second, larger entities should be aware of the Support Anti-Terrorism by Fostering Effective Technologies Act (SAFETY Act).  This Act provides liability protection for entities that fall victim to physical or cyberterrorist attacks.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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