Matthew F. Ferraro

The Biden Administration has issued its long-awaited Executive Order on Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern, which will create a new “outbound investment” review regime and impose compliance obligations for investors in certain high-technology industries focused on China after regulations are issued at a future date. (co-author)

CFIUS reviewed a record number of transactions for national security risks in 2022: 440 covered transactions, up from 436 transactions in 2021 with a 36% increase in CFIUS-imposed measures to mitigate national security concerns compared to 2021. (co-author)

On Friday, July 21, 2023, the White House announced that seven US technology companies at the forefront of generative artificial intelligence (AI) agreed to eight voluntary commitments to “promote the safe, secure, and transparent development use of AI technology”.

On May 23, 2023, the Cybersecurity and Infrastructure Security Agency (CISA) published a second edition of the #StopRansomware Guide (the Guide). The Guide, first published in September 2020, aims to help organizations reduce the risk of ransomware attacks, and it provides best practices to prevent, detect, respond to, and recover from such incidents. The 2023 version contains updated guidance and best practices in the areas of initial infection vectors, cloud backups, zero trust architecture… Show more

On May 23, 2023, the Cybersecurity and Infrastructure Security Agency (CISA) published a second edition of the #StopRansomware Guide (the Guide). The Guide, first published in September 2020, aims to help organizations reduce the risk of ransomware attacks, and it provides best practices to prevent, detect, respond to, and recover from such incidents. The 2023 version contains updated guidance and best practices in the areas of initial infection vectors, cloud backups, zero trust architecture and ransomware response. (originally published on WilmerHale's Privacy and Cybersecurity Law Blog) Show less

In light of the rapid emergence and adoption of artificial intelligence (AI) tools and systems, the Biden Administration convened the CEOs of leading AI companies on May 4, 2023 at the White House and announced several projects to promote what it terms “responsible” AI innovation. The White House also signaled an openness to the further regulation of these technologies.

In the past several weeks, the U.S. Copyright Office issued both a copyright decision and a policy statement establishing important guidelines for how copyright applies to works created through the application of artificial intelligence (AI). Taken together, the ruling and the guidance underscore the importance of human-involved creation in AI-generated work for the work to be able to enjoy copyright protection.

On April 25, 2023 four federal agencies—the Consumer Financial Protection Bureau (CFPB), the Federal Trade Commission (FTC), the United States Department of Justice (DOJ), and the U.S. Equal Employment Opportunity Commission (EEOC)—released a joint statement pledging vigorous use of their respective authorities to protect against discrimination and bias in automated systems.

New York City’s Department of Consumer and Worker Protection (DCWP) is expected to begin enforcing the City’s novel artificial intelligence (AI) bias audit law on July 5, 2023.

In a recent blog post, the Federal Trade Commission cautioned that artificial intelligence tools can be used to create phishing emails, fake websites, and fake profiles, or can help generate malware, ransomware, and prompt injection attacks.

Based on the recent court decisions of many counter disinformation litigation cases, this article discusses the recent legal developments that litigants in such cases or similar disputes should understand.

On March 31, 2023, Italy’s privacy regulator (the “Garante”), announced an immediate temporary limitation on the processing of data of individuals residing in Italy by OpenAI’s ChatGPT, the popular artificial intelligence (AI)-powered chatbot. The Garante expressed concerns that OpenAI has unlawfully processed people’s data, lacks a system to prevent minors from accessing the technology, and, because of a computer bug, allowed some users to see titles from another active user’s chat history… Show more

On March 31, 2023, Italy’s privacy regulator (the “Garante”), announced an immediate temporary limitation on the processing of data of individuals residing in Italy by OpenAI’s ChatGPT, the popular artificial intelligence (AI)-powered chatbot. The Garante expressed concerns that OpenAI has unlawfully processed people’s data, lacks a system to prevent minors from accessing the technology, and, because of a computer bug, allowed some users to see titles from another active user’s chat history, among other issues. Show less

The ubiquity of remote work and online hiring has led to a sharp rise in job scams across industries. Companies can take several steps to respond if they are impersonated by job scam fraudsters.​

Individuals and institutions are adopting chatbots like ChatGPT and other forms of Generative Artificial Intelligence at breakneck speed. But for all the opportunities these AI tools offer, they carry significant legal and ethical risks that businesses should consider with care--from contract and data privacy risks, to discrimination, IP, and deceptive trade practice issues, among others.

Recent trials have shown that defendants are increasingly casting doubt on the reliability of video evidence by claiming it was altered by artificial intelligence, and litigants will need to incorporate certain best practices to approach the risk of deepfakes — even if there’s no credible basis for the opposing party’s accusation.

On September 15, 2022, President Biden signed an Executive Order (EO) identifying economic sectors that merit special attention for review by the Committee on Foreign Investment in the United States. While the EO does not change CFIUS’s jurisdiction to review foreign investments in US businesses, it marks the first time a US president has singled out particular factors that the Committee should use when evaluating whether a transaction presents a threat to US national security. The EO will… Show more

On September 15, 2022, President Biden signed an Executive Order (EO) identifying economic sectors that merit special attention for review by the Committee on Foreign Investment in the United States. While the EO does not change CFIUS’s jurisdiction to review foreign investments in US businesses, it marks the first time a US president has singled out particular factors that the Committee should use when evaluating whether a transaction presents a threat to US national security. The EO will likely have the effect of expanding the number of foreign investments CFIUS reviews. Show less

The Committee on Foreign Investment in the United States is reviewing a record number of transactions for national security risks, according to a recently released Annual Report to Congress.

On June 28, 2022, the FBI issued a Public Service Announcement warning that fraudsters are using deepfakes to impersonate job applicants during online interviews and employing stolen Personally Identifiable Information to apply for positions. (co-author)

In this piece, WilmerHale lawyers summarize the risks that fake viral narratives and synthetic media pose to business, the issues at stake, and how businesses can prepare and respond. (co-author)

This chapter analyzes the emerging legal issues around viral narratives and synthetic media and discusses the role attorneys play in addressing them. (contributing author: Suzanne E. Spaulding)

A deepfake circulated online in March 2022 failed to unleash mayhem, as seems to have been the intention. But the experience provides some clues for what businesses can do to meet the threat posed by deepfakes and manipulated media.

The increased use of rudimentary deception techniques in visual imagery and the growth of hyperreal synthetic media raises several significant and developing legal issues. Whether related to their positive uses for entertainment or accessibility, or their misuse for abuse and deception, image alteration and deception pose evolving questions for attorneys, legislators, and businesses.

Russia’s full-scale military invasion of Ukraine is raising cybersecurity risks for American businesses. Corporate America must take immediate additional precautions to protect their networks in light of what is quickly becoming a major war in Europe.

The recent flood of false narratives has led to a proliferation of "counter-disinformation litigation," civil litigation brought by victims of falsity against its propagators. While many of these suits are still in the early stages, plaintiffs have seen notable (and surprising) successes thus far, suggesting the emergence of a specialized, potent tool to combat phony and harmful narratives. Both victims of false narratives and potential defendants should pay heed to these novel developments.

In recent years, we have seen the emergence of a new kind of manipulated media called “deepfakes.” They pose novel questions for the authentication of courtroom evidence. I contributed to an analysis of the unique challenges they pose in this handbook published by Bloomberg BNA.

Taiwan leads the world in dealing with disinformation and deepfakes, and for good reason. China launches information operations against it constantly. The United States could learn from Taipei's experience.

Deepfakes pose interesting legal questions when it comes to satire, intellectual-property protections, and free-speech precepts. (contribution to report)

The growing ease with which believable deepfake media can be created will accelerate a range of business dangers, particularly those related to reputational risk, market manipulation, and social engineering fraud.

As in prior years, the National Defense Authorization Act for Fiscal Year 2021 contains a variety of provisions setting US Department of Defense priorities for energy, environmental, and natural resource issues. These include measures that represent some degree of consensus on these often-politicized topics. In this Article, the fourth in an annual series, the authors canvass how the Act addresses a host of issues in the areas of climate resiliency, energy management, hazardous substances, and… Show more

As in prior years, the National Defense Authorization Act for Fiscal Year 2021 contains a variety of provisions setting US Department of Defense priorities for energy, environmental, and natural resource issues. These include measures that represent some degree of consensus on these often-politicized topics. In this Article, the fourth in an annual series, the authors canvass how the Act addresses a host of issues in the areas of climate resiliency, energy management, hazardous substances, and environmental and natural resource management, and its implications for practitioners in these areas. Show less

The United States should stand squarely with Bhutan in the face of Chinese territorial encroachment. By doing so, Washington can help create negative incentives for China to seize territory through salami-slicing tactics in Bhutan and elsewhere. The United States will buttress a small, democratic state against subversion. And it will push back against Beijing’s revanchism, which now stretches from the highest mountains to the sea.

Ransomware extortions have become a self-sustaining ecosystem of criminality. It is a thriving business because most victims are willing to pay relatively modest ransoms, which then fund further attacks. Things are likely to get worse but there are steps businesses and government can take to mitigate these dangers.

On June 23, 2021, Hawaii joined a growing number of states in barring certain deepfakes. Hawaii targets non-consensual deepfake pornography, when a non-consenting person’s face is placed on a nude body to create a believable pornographic image.

Congress should take the opportunities presented by a new administration, new agency heads, and new Intelligence Committee members to embrace a reinvigorated form of intelligence oversight — they should be “guardians” of the Intelligence Community. In this view, Congress provides accountable oversight of the intelligence enterprise, supports its people, and — critically in this era of apocalyptic political warfare — protects it from baseless attacks of partisan malfeasance.

Deepfakes will likely occasion an epochal shift in the information environment, similar to the paradigmatic shift in warfare brought about by atomic weapons. I offer five practical next steps the U.S. Government can take to address the worst uses of this new technology.

On March 10, 2021, the Federal Bureau of Investigation (FBI) issued a Private Industry Notification advising companies that “[m]alicious actors almost certainly will leverage synthetic content for cyber and foreign influence operations in the next 12-18 months.” The FBI’s stark warning—a first related to what is commonly referred to as deepfakes (synthetic media that is either wholly created or altered by artificial intelligence or machine learning)—comes amid rising awareness of the prevalence… Show more

On March 10, 2021, the Federal Bureau of Investigation (FBI) issued a Private Industry Notification advising companies that “[m]alicious actors almost certainly will leverage synthetic content for cyber and foreign influence operations in the next 12-18 months.” The FBI’s stark warning—a first related to what is commonly referred to as deepfakes (synthetic media that is either wholly created or altered by artificial intelligence or machine learning)—comes amid rising awareness of the prevalence and potential dangers of disinformation in general and highly realistic phony media, in particular. The FBI warns that synthetic content may be used to conduct Business Identity Compromise, where deepfake-tools will be employed to create “synthetic corporate personas” or imitate existing employees and will likely cause “very significant financial and reputational impacts to victim businesses and organizations.” Companies may want to revisit their security practices in the face of these intensifying challenges to information security. (co-author) (originally published as a WilmerHale Client on Mar. 16, 2021) Show less

"Getting the Deal Through" provides an international analysis in key areas of law, practice and regulation for corporate counsel, cross-border practitioners, and company directors and officers. This chapter explains how United States generally addresses cybersecurity through sector-specific statutes, regulations and private industry requirements, and it addresses recent coronavirus-related developments. (co-author)

On Wednesday, February 24, 2021, President Biden signed an Executive Order (Order) directing a series of reviews of global supply chains—the latest government effort to create more resilient and secure supply chains for critical materials and goods. The reviews will involve multiple departments within the Executive Branch and will implicate a broad range of policy-related concerns, including defense, intelligence, health, climate, the economy, geopolitics and human rights. While the Order does… Show more

On Wednesday, February 24, 2021, President Biden signed an Executive Order (Order) directing a series of reviews of global supply chains—the latest government effort to create more resilient and secure supply chains for critical materials and goods. The reviews will involve multiple departments within the Executive Branch and will implicate a broad range of policy-related concerns, including defense, intelligence, health, climate, the economy, geopolitics and human rights. While the Order does not single out any country in particular, it will likely focus on China, whose dominance of key supply chains is widely perceived as imperiling US economic and national security, as well as other nations “that are, or are likely to become, unfriendly or unstable.” (co-author) Show less

The omnibus appropriations and COVID fiscal stimulus package includes some of the most significant energy and climate legislation in years. These provisions present important public-private partnership opportunities, opening doors for energy and technology companies. (co-author)

Congress is closing the year by taking significant yet unheralded early steps to legislate on deepfakes. In quick succession in December, Congress sent two bills to the president, the National Defense Authorization (NDAA) for FY 2021 and the IOGAN Act. They would require, respectively, the Department of Homeland Security (DHS), the Department of Defense (DOD), and the National Science Foundation (NSF) to issue reports on and bolster research into deepfakes. These bills ask for recommendations… Show more

Congress is closing the year by taking significant yet unheralded early steps to legislate on deepfakes. In quick succession in December, Congress sent two bills to the president, the National Defense Authorization (NDAA) for FY 2021 and the IOGAN Act. They would require, respectively, the Department of Homeland Security (DHS), the Department of Defense (DOD), and the National Science Foundation (NSF) to issue reports on and bolster research into deepfakes. These bills ask for recommendations that could lay the predicate for federal regulations of such media. Show less

On November 30, 2020, New York Governor Andrew Cuomo signed a path-breaking law addressing synthetic or digitally manipulated media. The law has two main components. First, it establishes a postmortem right of publicity to protect performers’ likenesses—including digitally manipulated likenesses—from unauthorized commercial exploitation for 40 years after death. Second, the law bans nonconsensual computer-generated pornography (often called deepfake pornography)—highly realistic false images… Show more

On November 30, 2020, New York Governor Andrew Cuomo signed a path-breaking law addressing synthetic or digitally manipulated media. The law has two main components. First, it establishes a postmortem right of publicity to protect performers’ likenesses—including digitally manipulated likenesses—from unauthorized commercial exploitation for 40 years after death. Second, the law bans nonconsensual computer-generated pornography (often called deepfake pornography)—highly realistic false images created by artificial intelligence (AI). With this law, New York becomes the first state in the nation to explicitly extend a person’s right of publicity to computer-generated likenesses. This law has important implications to media and entertainment law and is part of growing legislative efforts around deepfakes. In sum, manipulated media is fast becoming a government-regulated field. (originally published as a WilmerHale Client Alert on Dec. 17, 2020) Show less

This National Security Institute Backgrounder addresses what deepfakes are, how they're made, what dangers they pose, and the laws and norms that may mitigate those negative uses.

Regulatory scrutiny of foreign investment in the United States has been increasing for several years, and that trend is likely to continue in the incoming Biden Administration, which has already called for a reshoring of supply chains and voiced suspicion of Chinese technological theft. The expanded jurisdiction of the Committee on Foreign Investment in the United States (CFIUS), proposed Congressional funding for increased operations and staffing, and new regulations portend increasing… Show more

Regulatory scrutiny of foreign investment in the United States has been increasing for several years, and that trend is likely to continue in the incoming Biden Administration, which has already called for a reshoring of supply chains and voiced suspicion of Chinese technological theft. The expanded jurisdiction of the Committee on Foreign Investment in the United States (CFIUS), proposed Congressional funding for increased operations and staffing, and new regulations portend increasing regulatory scrutiny of such transactions for national security threats well into the next administration. (Originally a client alert, republished in Foreign Investment Watch, Dec. 20, 2020, https://foreigninvestmentwatch.com/what-a-biden-administration-might-mean-for-national-security-reviews/) (co-author) Show less

As in prior years, the National Defense Authorization Act for Fiscal Year 2020 contains a variety of provisions setting U.S. Department of Defense priorities for energy, environmental, and natural resource issues. These include measures that represent some degree of consensus on these often-politicized topics. In this Article, the third in an annual series, we canvass how the Act addresses a host of issues in the areas of climate resiliency, energy management, hazardous substances, and… Show more

As in prior years, the National Defense Authorization Act for Fiscal Year 2020 contains a variety of provisions setting U.S. Department of Defense priorities for energy, environmental, and natural resource issues. These include measures that represent some degree of consensus on these often-politicized topics. In this Article, the third in an annual series, we canvass how the Act addresses a host of issues in the areas of climate resiliency, energy management, hazardous substances, and environmental and natural resource management, and its implications for practitioners in these areas. Show less

The COVID-19 pandemic and the serious supply chain vulnerabilities it exposed have led to a seismic shift in U.S. policy and regulation, from stepped-up measures to protect U.S. technology, intellectual property and data from theft or acquisition by China to a new national imperative to end U.S. dependence on China for strategically important materials, components and products. This three-part article provides a comprehensive overview of efforts to "decouple" the US and Chinese economies and… Show more

The COVID-19 pandemic and the serious supply chain vulnerabilities it exposed have led to a seismic shift in U.S. policy and regulation, from stepped-up measures to protect U.S. technology, intellectual property and data from theft or acquisition by China to a new national imperative to end U.S. dependence on China for strategically important materials, components and products. This three-part article provides a comprehensive overview of efforts to "decouple" the US and Chinese economies and how they impact private sector businesses, with particular attention to recent changes addressing U.S. supply chain concerns. (co-author) Show less

A recent incident involving the misappropriation of LeBron James' image online puts into sharp relief the many legal remedies anyone can use to vindicate their rights if their likenesses are misused. These tools may grow in importance as manipulated media and celebrity deepfake pornography menaces an ever increasing number of people.

Conspiratorial thinking is like water -- it seeps into perceptions about everything. It warps views on matters as far-flung as telecommunications infrastructure and pharmaceuticals. It is a lesson businesses of all stripes would do well to learn: In our interconnected era, where social trust in all institutions is at low ebb, businesses can become collateral damage to conspiracy theories. Off-the-wall, yet widely shared claims can harm corporate brands, the perceptions of products, and even… Show more

Conspiratorial thinking is like water -- it seeps into perceptions about everything. It warps views on matters as far-flung as telecommunications infrastructure and pharmaceuticals. It is a lesson businesses of all stripes would do well to learn: In our interconnected era, where social trust in all institutions is at low ebb, businesses can become collateral damage to conspiracy theories. Off-the-wall, yet widely shared claims can harm corporate brands, the perceptions of products, and even hard assets. Show less

Protecting private entities and individuals from the risks of disinformation and deepfakes will take new thinking, preparation and diligence. We should consider threats, responses and appropriate measures in an appropriately broad context that sees the dangers and solutions in a broad lens.

The spread of a global coronavirus contagion along with a concomitant “infodemic” of viral misinformation about the disease, its origins, and potential remedies, have made clear that disinformation can infect almost any facet of contemporary life. Human patterns of producing, sharing, and consuming information have entered a new era. And so too must our understanding of the dangers and opportunities presented by those changes. A recent conference at New York University contributed… Show more

The spread of a global coronavirus contagion along with a concomitant “infodemic” of viral misinformation about the disease, its origins, and potential remedies, have made clear that disinformation can infect almost any facet of contemporary life. Human patterns of producing, sharing, and consuming information have entered a new era. And so too must our understanding of the dangers and opportunities presented by those changes. A recent conference at New York University contributed significantly to broadening the conversation about the dangers of disinformation and deepfakes. Show less

As trade-wars proliferate, technological rivalries intensify and U.S. corporations take public positions on hot-button social issues, American businesses will increasingly find themselves in the crosshairs of nation-state sponsored disinformation operations.

Disinformation and “deepfakes” pose growing threats to the private sector. Already, disinformation has been weaponized to harm brands, move markets, and undermine trust in companies and industries. This analysis (1) reviews the business and legal risks that could arise when disinformation targets businesses, markets, and corporate leaders; (2) addresses potential causes of action that could be brought by victims of disinformation against the individual creators or propagators of malicious… Show more

Disinformation and “deepfakes” pose growing threats to the private sector. Already, disinformation has been weaponized to harm brands, move markets, and undermine trust in companies and industries. This analysis (1) reviews the business and legal risks that could arise when disinformation targets businesses, markets, and corporate leaders; (2) addresses potential causes of action that could be brought by victims of disinformation against the individual creators or propagators of malicious content, whether under long-established state and federal laws or under new laws enacted within the past year that specifically address deepfakes. And (3) reviews some best practices businesses can undertake today to prepare for these new exposures. While businesses are not defenseless in this new and different information environment, protecting entities and individuals will require forward thinking, preparation, and diligence. (co-author) Show less

On December 20, 2019, President Trump signed the nation’s first federal law related to "deepfakes.” The law (1) requires a comprehensive report on the foreign weaponization of deepfakes; (2) requires the government to notify Congress of foreign deepfake-disinformation activities targeting US elections; and (3) establishes a “Deepfakes Prize” competition to encourage the research or commercialization of deepfake-detection technologies. (co-author)

At a time when America’s role in the world is being questioned by many, this article analyzes a series of “Heartland Speeches” on national security that U.S. Rep. Mac Thornberry (TX-13) has been delivering around the country, compares them favorably to a similar effort launched by Secretary of State Henry Kissinger in the mid-1970s and calls for a renewed, bipartisan embrace of American internationalism.

Federal and state lawmakers across the nation are considering legislation to address what they see as the rising dangers of "deepfakes." Deepfakes are false yet highly realistic artificial intelligence-created video, audio and text. This white paper provides a comprehensive overview of all pending and adopted legislation in this fast-changing field--the first such publication to do so.

On Sept. 1, Texas became the first state in the nation to prohibit the creation or distribution of deepfake videos intended to harm candidates for public office or influence elections. Amid rising fears of the dangers of hyper-realistic, computer-altered fake photos and videos, Texas is now only the second state to impose penalties on the creation and propagation of deepfakes in certain circumstances. Other state houses around the country, as well as Congress, may adopt additional, comparable… Show more

On Sept. 1, Texas became the first state in the nation to prohibit the creation or distribution of deepfake videos intended to harm candidates for public office or influence elections. Amid rising fears of the dangers of hyper-realistic, computer-altered fake photos and videos, Texas is now only the second state to impose penalties on the creation and propagation of deepfakes in certain circumstances. Other state houses around the country, as well as Congress, may adopt additional, comparable measures targeting deepfake technology over the next year. Show less

This piece summarizes the Deepfakes Report Act of 2019, introduced on June 28, 2019, which broadly defines “deepfakes” and lays out requirements and directives for the US Department of Homeland Security. One of several deepfakes bills proposed in the past few months, this represents the latest effort by federal and state lawmakers to address rising public concerns about the dangers posed by high-quality disinformation to the electoral process, national security, commercial and financial… Show more

This piece summarizes the Deepfakes Report Act of 2019, introduced on June 28, 2019, which broadly defines “deepfakes” and lays out requirements and directives for the US Department of Homeland Security. One of several deepfakes bills proposed in the past few months, this represents the latest effort by federal and state lawmakers to address rising public concerns about the dangers posed by high-quality disinformation to the electoral process, national security, commercial and financial activity, and personal privacy. (co-author) Show less

This threat of disinformation on a companies, brands, and markets will only get worse as disinformation attacks become more common and as deep fakes become more convincing and their use more widespread in both political and business spheres. So what can corporations do to protect their brands and valuations? Businesses and institutions should consider six measures that they can take before, during and after a disinformation attack.

This analysis of the National Defense Authorization Act (NDAA) argues that the annual U.S. defense legislation has “worldwide ramifications” and “may be one of the most significant pieces of energy and environmental legislation most people have never heard of.” It addresses legislative provisions related to 1) Climate Resiliency, 2) Energy Management, 3) Hazardous Substances, and 4) Environment and Natural Resource Management.

In sum: “While political debates about climate change… Show more

This analysis of the National Defense Authorization Act (NDAA) argues that the annual U.S. defense legislation has “worldwide ramifications” and “may be one of the most significant pieces of energy and environmental legislation most people have never heard of.” It addresses legislative provisions related to 1) Climate Resiliency, 2) Energy Management, 3) Hazardous Substances, and 4) Environment and Natural Resource Management.

In sum: “While political debates about climate change continue and plans for infrastructure investment move slowly, the NDAA takes significant steps in both areas— improving the resilience of DoD installations to meet climate change risks, preparing for a warming Arctic, authorizing DoD to invest directly in community infrastructure, and many others. It also authorizes millions of dollars to study the effects of fire-suppression chemicals called per-and polyfluoroalkyl substances (PFAS) that may pose a substantial litigation risk for DoD, corporate manufacturers, and others. Considering that all of this legislative activity falls under the umbrella of national security, the NDAA’s energy and environmental policy choices do not map clearly onto familiar political labels.”

49 Environmental Law Reporter 10220 (2019) Show less

"Fake news" threatens not just politics but corporations, brands, and shareholders. This under-theorized issue will become only more important as disinformation attacks become more common. This article outlines a framework for thinking about threats in this space and proposes actions companies can take both before and after fake-news attacks occur. (co-author)

This law and policy paper introduces the immediate challenges found in Africa, the Americas, Asia, Europe, and the Middle East that are making headlines today and considers how these issues contribute to the larger picture of global affairs in 2019. It addresses recent developments that are driving policy decisions confronting the 116th Congress and anticipates the key questions that Congress will need to consider for these regions in the coming year. (co-author)

Much has been made about the rise of fake news--false reports that look like genuine news articles--and the threat it poses to elections and democracy in general. Less well understood is the role disinformation can play in damaging the reputations of private corporations and institutions. This Question-and-Answer article provides insight into what legal and crisis-management options C-suites may consider when faced with a crisis brought about by misinformation attacks. (co-author)

The threat wildfires pose to the health and safety of the country is not a concern only of the US Forest Service and the Congress’s environmental committees. When the 116th Congress convenes in January 2019, expect legislative activity aimed at mitigating the dangers of wildfires from an unexpected place: the House Armed Services Committee under the probable chairmanship of Rep. Adam Smith (D-Wash.).

The U.S. Department of the Treasury recently released an interim rule that establishes a pilot program to implement portions of the Foreign Investment Risk Review Modernization Act. Primarily, the pilot program (1) expands the jurisdiction of the Committee on Foreign Investment in the United States (CFIUS) to cover certain non-controlling, non-passive investments in companies involved with critical technologies within specific industries, and (2) mandates that parties file declarations for… Show more

The U.S. Department of the Treasury recently released an interim rule that establishes a pilot program to implement portions of the Foreign Investment Risk Review Modernization Act. Primarily, the pilot program (1) expands the jurisdiction of the Committee on Foreign Investment in the United States (CFIUS) to cover certain non-controlling, non-passive investments in companies involved with critical technologies within specific industries, and (2) mandates that parties file declarations for transactions covered by the pilot program. (co-author) Show less

Survey data and immutable demographic trends argue that the President's foreign policy is not likely to endure for long as American society changes and millenials--who are hardwired internationalists--come to the fore.

The National Defense Authorization Act for 2019 will have a major impact on energy, environment, and natural resources policy. This article assesses five of the bill's key provisions in that space, including provisions relating to the study and remediation of toxic chemicals, known as PFAS, around military bases; the use of geothermal energy sales to support military bases; the declaration of wildfires as a threat to national security; the extended authorization for the taking of marine… Show more

The National Defense Authorization Act for 2019 will have a major impact on energy, environment, and natural resources policy. This article assesses five of the bill's key provisions in that space, including provisions relating to the study and remediation of toxic chemicals, known as PFAS, around military bases; the use of geothermal energy sales to support military bases; the declaration of wildfires as a threat to national security; the extended authorization for the taking of marine mammals by the Department of Defense; and the transfer of funds to cleanup the Agent Orange-remnant dioxin in Vietnam. (co-author) Show less

The President will soon sign the Foreign Investment Risk Review Modernization Act of 2018, which significantly modifies the rules for foreign investments in the United States. Because of this law, which reflects growing bipartisan concern that certain foreign transactions are diminishing US technological superiority, navigating deal risks will likely grow more complex, for both US sellers and foreign buyers. The law requires the Secretary of the Treasury to craft new regulations to implement… Show more

The President will soon sign the Foreign Investment Risk Review Modernization Act of 2018, which significantly modifies the rules for foreign investments in the United States. Because of this law, which reflects growing bipartisan concern that certain foreign transactions are diminishing US technological superiority, navigating deal risks will likely grow more complex, for both US sellers and foreign buyers. The law requires the Secretary of the Treasury to craft new regulations to implement many of its provisions. The rule-making process is likely to play out over the next year with a variety of opportunities for companies to engage with the Treasury Department about the new regulations. Interested parties will want to engage in the regulatory process and in the writing of guidelines and examples. (co-author) Show less

The energy, environment, and natural resources issues involving the U.S. Department of Defense (DoD) are significant. With massive energy requirements across its worldwide operations, with legacy pollution and ongoing industrial scale operations at many military bases, and with millions of acres of habitat supporting endangered species as well as other natural resources, the DoD is acutely focused on matters related to energy, the environment, and natural resources. Analyzing the 2018 National… Show more

The energy, environment, and natural resources issues involving the U.S. Department of Defense (DoD) are significant. With massive energy requirements across its worldwide operations, with legacy pollution and ongoing industrial scale operations at many military bases, and with millions of acres of habitat supporting endangered species as well as other natural resources, the DoD is acutely focused on matters related to energy, the environment, and natural resources. Analyzing the 2018 National Defense Authorization Act through this lens can provide valuable insights into DoD’s current priorities, challenges, and opportunities.​ (co-author)
18 Pratt's Energy Law Report 223 (2018) Show less

The National Defense Authorization Act (NDAA) is the most important piece of environmental legislation most people have never heard of. For example, the 2018 NDAA contains a number of critical energy and environmental initiatives, from climate change preparations to energy resilience, from conservation projects to renewable energy initiatives. The stealth environmental and energy lawmaking in the NDAA will have substantial effects on the Department of Defense, its partners, and its… Show more

The National Defense Authorization Act (NDAA) is the most important piece of environmental legislation most people have never heard of. For example, the 2018 NDAA contains a number of critical energy and environmental initiatives, from climate change preparations to energy resilience, from conservation projects to renewable energy initiatives. The stealth environmental and energy lawmaking in the NDAA will have substantial effects on the Department of Defense, its partners, and its contractors. During a period of congressional gridlock and controversy surrounding environmental policy, the 2018 NDAA already on the books and the 2019 NDAA now being written represent significant, if often overlooked, policy-making efforts in this critical area. (co-author) Show less

The devious and sophisticated disinformation campaign Russia waged during the 2016 presidential election is a direct challenge to our citizenry’s ability to think critically, separate bad data from good, and avoid conspiratorial conceits. Technological fixes from Silicon Valley may help stem some digital disinformation, but the surest guardian against deception rests between our ears—in our abilities to resist confirmation bias, think independently, and assess information with rational… Show more

The devious and sophisticated disinformation campaign Russia waged during the 2016 presidential election is a direct challenge to our citizenry’s ability to think critically, separate bad data from good, and avoid conspiratorial conceits. Technological fixes from Silicon Valley may help stem some digital disinformation, but the surest guardian against deception rests between our ears—in our abilities to resist confirmation bias, think independently, and assess information with rational detachment. To that end, everyday citizens could benefit from learning the kind of analytic techniques that the CIA has honed for generations. (co-author) Show less

The White House's Infrastructure Plan calls for roughly $1.5 trillion in infrastructure investments over ten years. The Administration's plan relies on "cost-sharing," a specialized way of shifting responsibility to state and local entities. While the Administration has not elaborated on the specifics of its proposal, the example of the U.S. Army Corps of Engineers and its history with cost-sharing provides a valuable case study that can inform how such initiatives among federal, state, and… Show more

The White House's Infrastructure Plan calls for roughly $1.5 trillion in infrastructure investments over ten years. The Administration's plan relies on "cost-sharing," a specialized way of shifting responsibility to state and local entities. While the Administration has not elaborated on the specifics of its proposal, the example of the U.S. Army Corps of Engineers and its history with cost-sharing provides a valuable case study that can inform how such initiatives among federal, state, and local entities may work--and their potential pitfalls. (co-author) Show less

The U.S. Supreme Court case "BNSF Railway Co. v. Tyrell" redefined the contours of a court’s jurisdictional reach by effectively subjecting corporations to general personal jurisdiction only in those states where they are incorporated or have their principal place of business. Dozens of courts across the country have relied on BNSF Railway to dismiss lawsuits under factual circumstances that, in the past, would almost certainly have sufficed for the exercise of general jurisdiction. (co-author)

In the mid-1970s, Henry Kissinger gave a series of under-appreciated public addresses, called the "heartland speeches," across America in an effort to build a domestic consensus for American internationalism after the trauma of the Vietnam War. In two speeches in October 2017, Sen. John McCain made similar (if coincidental) appeals to U.S. globalism. Considering Kissinger's experience and the current moment, the time is ripe to repeat McCain's example and expand his public campaign for… Show more

In the mid-1970s, Henry Kissinger gave a series of under-appreciated public addresses, called the "heartland speeches," across America in an effort to build a domestic consensus for American internationalism after the trauma of the Vietnam War. In two speeches in October 2017, Sen. John McCain made similar (if coincidental) appeals to U.S. globalism. Considering Kissinger's experience and the current moment, the time is ripe to repeat McCain's example and expand his public campaign for liberal values and American internationalism. We need a "Heartland Speeches 2.0." Private citizens and public officials should break out of the Acela corridor and get off of Twitter and give thoughtful speeches to live audiences across the country in favor of the pragmatic and principled values and policies that have served America and the world well for the past 70 years. Show less

In the first of four reports to the President, the Treasury Department proposed significant changes to Obama-era banking regulations. The Report seeks to streamline supervision of the financial sector, give political appointees more influence over regulation, and exempt some institutions from rules, among other changes. (co-author)

The intelligence agencies' little-appreciated relationships with foreign intelligence agencies , which are sustained by overlapping interests, professional respect, and longevity, have a history of weathering rough patches—and they may well provide the ballast American national security and foreign policy will need in a topsy-turvy Trump administration.

By portraying the OPM attack as acceptable in the rough-and-tumble world of great power politics, the United States is needlessly surrendering valuable arguments that, if properly advanced, could mitigate Chinese aggression in cyberspace and elsewhere.

The media needs to press 2016 presidential candidates to flesh out their security policies now and not just accept the same old soundbites, especially when it comes to Beijing's challenge in the South China Sea and beyond.

The intelligence agencies should adopt six major reforms to make sure America’s leaders and troops get the intel they need. (co-author)

Gen. David Petraeus joins a long, embarrassing line of national security leaders who have flouted information security rules and gotten off relatively easily while lower-rung leakers face much harsher penalties. This practice creates an unfortunate double standard.

The CIA’s successful reorganization around centers would be the most significant evidence yet that the intelligence reform effort, so often maligned, has succeeded at the place some thought it least likely.

There is a compelling argument for strengthening ties with the tiny kingdom of Bhutan.

Not every happy and fulfilling relationship is life-long, and federal service does not need to be, either.

Greater transparency into intelligence work can be beneficial to the country and to intelligence gathering.

The Snowden disclosures have unfairly maligned the work of the intelligence agencies and given a false impression of the nature of espionage, the rigorous oversight of it, and the damage wrought by leaks. Those who care about the Constitution, the rule of law and protecting American interests while promoting a better world, would find many kindred spirits within Langley's walls

Learning how to manage up without falling down on the job is an important skill for assistants to national security principals.

The Intelligence Community needs a fellowship program to strengthen its effectiveness and address public skepticism.

The Bhutanese constitution provides an innovative litigation strategy for denationalized Nepali-Bhutanese who seek residency status in Bhutan.

An analysis of comment letters and annual reports shows that the Securities and Exchange Commission's corporate cybersecurity disclosure guidance procedurally overreaches and substantively underachieves.

The Bhutanese constitution runs athwart international law with regard to its citizenship and nationalization provisions, requiring a new interpretation.

A novel approach can resolve a WMD dispute between China and a little known but consequential international nonproliferation organization.