In a series of speeches in early March at the ABA White Collar Crime Conference in San Francisco, senior Department of Justice officials highlighted several areas that compliance officers and in-house counsel should be paying attention to. These areas include DOJ’s continued efforts to incentivize whistleblowing and self-reporting regarding alleged corporate wrongdoing and DOJ’s continued focus on anti-corruption, technology, and national-security matters.

More incentives for whistleblowers: Deputy Attorney General Lisa Monaco announced a “DOJ-run whistleblower rewards program,” which will be, in DAG Monaco’s words implemented following a “90-day sprint” to “fill out the particulars” around the program.¹

While the devil will undoubtedly be in those details, at a high-level, the new program represents the first time (at least in recent memory) DOJ has a formal program to incentivize whistleblowing regarding potential corporate criminal wrongdoing. Other enforcement agencies, including the SEC, CFTC, and the Department of Treasury’s Financial Crimes Enforcement Network have each had their own whistleblower programs. The SEC and CFTC programs in particular have paid out hundreds of millions of dollars of awards over the last decade and contributed to DOJ prosecutions, given DOJ’s overlapping jurisdiction with these agencies for violations of the federal securities laws (including the Foreign Corrupt Practices Act) and commodities-related offenses.

However, according to DAG Monaco, these programs are “a patchwork quilt” because “[t]hey only cover misconduct with their agencies’ jurisdictions,” and thus a DOJ-specific program was needed. DAG Monaco provided examples of conduct that might be outside the “patchwork” of the pre-existing whistleblower programs. These included “FCPA violations by non-issuers,” who would not be subject to SEC jurisdiction (i.e., companies not listed on a U.S. national exchange); violations of the recently passed Foreign Extortion Prevention Act, which targets foreign officials who pay bribes;² and “domestic corruption cases, especially involving illegal corporate payments to government officials.”

While we expect to know more once the “particulars” are filled out, this announcement serves as a good reminder for compliance officers and in-house counsel to ensure their own internal reporting programs are up to date and effective so that companies have a chance to identify and mitigate potential misconduct conduct and that they have up-to-date anti-retaliation policies against whistleblowers. 

Increased focus on AI-related compliance. DAG Monaco’s speech also reiterated DOJ’s recent emphasis on enforcement around “disruptive technologies,” including what she called the “ultimate disruptive technology,” AI.

Most relevant to compliance officers and in-house legal teams, DAG Monaco stated that, when DOJ “assess[es] a company’s compliance program — as they do [every time they negotiate a settlement with a company] they consider how well the program mitigates the company’s most significant risks. And for a growing number of businesses, that now includes the risk of misusing AI.” DAG Monaco added that “going forward and wherever applicable, our prosecutors will assess a company’s ability to manage AI-related risks as part of its overall compliance efforts.” Thus, in short, compliance and legal leadership should be considering the company’s policies around the use, and potential misuse, of AI. 

Data security enforcement and protection program. In another speech, Assistant Attorney General Matthew Olsen, head of DOJ’s National Security Division (“NSD”) announced that NSD would be “building a data security protection and enforcement program from the ground up,” including via both administrative rulemaking and enforcement efforts, to implement President Biden’s recent executive order giving DOJ authority to block countries that pose a threat to US national security from harvesting Americans’ sensitive personal data. AAG Olsen noted that to date, “no federal law prohibited our foreign adversaries and their proxies from buying bulk personal data directly on the open market or through the shadowy world of data brokers” but that NSD’s new program would “close that front door.” AAG Olsen advised companies that they should:

• Know your data, meaning “understand fully what categories of data you transact in and how much — and whether you have appropriate safeguards in place to ensure that sensitive information cannot be misused.”
  
  
• Know where that data is going, including by “review[ing] existing agreements to sell or provide your data to others — including advertisers, marketers, and vendors — and update those agreements now to ensure you have sufficient confidence in where that data is going.”
  
  
• Know who has access to the data. including “understand[ing] what data you are making available and to consider the implications.
  
  
• Know your data sales, including “consider[ing] any transactions you have involving the sale of data, and consider whether you have confidence in the business practices of any third-party data brokers you deal with, directly or indirectly.”

As with is standard with DOJ compliance-related policies, AAG Olsen emphasized the need for companies to develop a “risk-based approach” tailored to their individual circumstances.

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In short, these speeches made clear DOJ’s continued emphasis on incentivizing self-reporting and whistleblowing and the Department’s focus on enforcement and compliance in the areas of anti-corruption and technology.

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¹See Office of Public Affairs | Deputy Attorney General Lisa Monaco Delivers Keynote Remarks at the American Bar Association’s 39th National Institute on White Collar Crime | United States Department of Justice
² For more on FEPA, see our January 3, 2024 client alert here: Anti-Corruption Developments: New U.S. Law Aims to Target “Demand” Side of Bribery by Foreign Officials | Thought Leadership | Baker Botts

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