Podcast: “Corporations and National Security: Is the Private Sector the New Battleground?”

How do national security law issues impact business?  What does a national security law practice look like at a major law firm?  Today’s video from Duke’s 28th Annual National Security Law Conference helps to answer those questions: “Corporations and National Security Law: Is the Private Sector the New Battleground?”

  “National security law” can be conceived too narrowly.  To many it seems to mostly involve the legal aspects of armed conflicts, intelligence gathering, counter-terrorism, and related activities.  Moreover, its practice can appear to be mainly the province of government actors. 

Actually, a growing number of clients find themselves dealing with issues that have national security aspects hence there is a considerable private sector practice of national security law. This panel will help you explore some of those dimensions.

Here’s who you’ll hear from:

The panel was orchestrated by my friend and Duke Law colleague Prof. Elisabeth de Fontenay, one of the nation’s leading experts on corporate law and corporate finance, as the moderator.  The discussion was kicked off by Prof. Tom C.W. Lin, the Jack E. Feinberg Chair Professor of Law at Temple University’s Beasley School of Law, he later joined other terrific practitioners on the panel:

Ms. Caroline E. Brown, Partner, Crowell & Moring

Mr. Robert J. Denault, Associate, Gibson Dunn, Duke Law ’21

Mr. Hensey Fenton III, Associate, Covington & Burling, Duke Law ’19

Here’s a few snippets of what you’ll hear:

Prof Lin, drawing from his recent law review article, Business Warfare, notes that the “headlines of our day suggest a world in turmoil,” and adds:

Prof Lin

“Yet sometimes lost in the headlines is the fact that businesses are under attack as part of these geopolitical conflicts. Adversaries are assaulting one another’s companies using drones, mercenaries, cyber weapons, sanctions, and restrictions. Instead of military and government installations, private firms are often the preferred targets in this mode of warfare. Instead of soldiers and squadrons with bullets and bombs, the weapons of choice are frequently economic in nature and cyber in form.”

The panelists speak to the various aspects of national security law that private sector lawyers are actually seeing in their practices, to include how the war in Ukraine has impacted it.  Lots of insights were offered.  Consider, for example, this brief extract from Caroline Brown’s remarks:

“When I left government a few years ago and joined the private sector again…I thought that economic sanctions might take up 20%, 30% of my time. I’d say, this year it’s taken up probably 80% of my time as a result of Russia’s invasion of Ukraine. So all of a sudden, we had companies calling us who had never even thought about sanctions compliance before.”

“There are different levels of sophistication, of course, with different multinational companies about what their knowledge of sanctions compliance is, whether or not they care to comply. More quickly than ever, we saw the Department of the Treasury introduce an entirely new sanctions program.

“We also saw for the first time in a long time a coordinated approach across the United States, the UK, and the EU. And so you had to think about sanction considerations not only from the perspective of the United States government, but also if you had any touch points in the EU.”

Duke Law grad Hensey Fenton explained how cybersecurity and dealing with cyber breaches has become an important part of his practice.  He described how practical considerations can permeate the response.

[F]irst, it’s the idea of preparing for these attacks, and being in a position to actually respond [and] being in a position to actually report these attacks. And so that’s been the biggest thing that I’ve had to deal with recently, is actually what do you do when these attacks happen, and how do you, first of all, investigate to figure out what the heck happened, investigate to figure out whose fault is it, investigate to figure out what to do to prevent this from happening again…and then also involving government. That idea of that public-private partnership aspect.

Hensey also noted another high-tech area: generative artificial intelligence (AI) is an area he’s been really involved with lately.

“Everyone’s just so enamored by this generative AI, but it can be used in so many different ways that have national security implications.”

Mr. DeNault (l); Mr. Fenton (r)

Class of 2021 grad Robert DeNault made the important point that these days national security-related issues can “pop up” in a variety of contexts.  In the extract below, he explains that he finds there are two “buckets” of issues: 

“I think it is helpful, for especially the students here, to get a sense of how these issues pop up in your early practice, whether you’re a litigation associate, or a corporate associate, or whatever you choose to pursue. In the litigation practice, I think it’s fallen largely into two buckets for me so far.”

“There’s traditional things, like the ones we’ve discussed. Sanctions have come up on some of the cases. I’ve been involved in litigation against an entity that ended up being sanctioned in the last year. And that was interesting because you start considering it from a strategic standpoint. It doesn’t actually preclude the entity from pursuing certain litigation in the US, but reputationally, firms may distance themselves from those entities. And there may be ways to strategically use the sanctions in the litigation process. So that was interesting…..”

“…And then there’s like a second bucket of craziness, and it’s all the new things that are catching the headlines and catching our attention. Cryptocurrency has been a huge, huge white collar practice area for the last six months. And it intersects with so many different statutes that tangentially relate to national security.

National security issues significantly impact businesses and commercial transactions- and that involves many billions of dollars. This video gives you a rare look at some of those issues that businesses deal with today, how lawyers protect and help their clients, and what business warfare entails–be sure to watch (or listen)!!!!  (Again, it’s found here).

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!





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