Fight Against Sexual Misconduct Bringing Regulations, Protections for Lobbyists

 As sexual abuse, assault, harassment, and other misconduct have dominated national headlines, state capitols and lobbyists have not escaped scrutiny.  Amidst a spate of allegations and member resignations, some state legislatures and ethics commissions are taking action.  While a variety of measures are being considered, including tightening gift rules, it is apparent that lobbyists and their employers in some states will face new regulations, new protections, or both.  Lobbyists and their employers should watch closely for developments, which may impose training and policy requirements or offer opportunities to report and prevent misconduct.

Illinois, one of the first states to enact a comprehensive program, adopted elements of both regulation and protection.  SB 402 requires many agencies and state officials, including legislators, to adopt sexual harassment prohibition and reporting rules; requires training for state officials and employees; requires training for lobbyists; requires lobbyists and their employers to adopt sexual harassment prohibitions and reporting rules; and adopts a scheme of reporting, investigating, and penalizing sexual harassment by lobbyists and their employers.  Lobbyists and their employers must confirm in their registration that they have adopted the required policy, agree to make it available on request to any individual, agree that any person may contact the registrant’s agent to report harassment, and recognize the state’s authority to regulate in this space.  The state has adopted emergency regulations implementing the new law.Oregon is also among those states protecting both government employees and lobbyists.  The state is expanding its regular legislative anti-harassment training on a voluntary basis to both the executive branch and lobbyists.Some states remain more focused on protecting lobbyists from harassment and coercive situations.  After reports of legislators harassing and abusing lobbyists in Minnesota, state legislators are pushing for a formal reporting system to be used by lobbyists and others, with an independent investigative body.  California is also working on this aspect of the issue, where the legislature is considering parallel efforts to protect legislative staff and lobbyists from harassment by lawmakers.

Other states have focused more on regulation.  New Mexico has offered trainings for lobbyists, and will be asking lobbyists to disclose whether they have sexual harassment policies in place and if they have attended the training.  The Secretary of State plans to push to make the training mandatory.  While Utah rejected a proposal to require anti-harassment training for lobbyists late last year, there are plans to introduce a bill on the topic in this session.

The issue has also rekindled a proposal that North Carolina and Missouri have previously rejected — whether sex between legislators and lobbyists is a “gift” regulated by state ethics laws.  Florida is now the latest state to consider the question, anticipating that, along with a contemplated sexual harassment claims panel and other changes, defining sex as a prohibited lobbyist gift will disrupt an allegedly hostile culture in Tallahassee.

What Next for Trump and Africa?

In late December, the Trump Administration released the “National Security Strategy of the United States of America.” The nearly 70 page document lays out the foreign policy priorities of the current Administration in both thematic and regional approaches. At the time of its release, the press focused on the strategy’s emphasis on Russia and China, and the proposed policies towards these “revisionist powers.” But, there was minimal coverage on what this strategy had to say about Africa.
Nevertheless, President Trump’s recent derogatory remarks about Africans and Haitians, which he denies making, has sparked a controversy that has overshadowed the strategy as it pertains to Africa. The question is whether the Trump administration will be able to pursue aspects of the National Security Strategy (NSS) as it relates to Africa in hopes of reconstituting a “respectful engagement” that is elemental to advancing U.S. interests in the region. As the Administration contemplates its next steps in Africa, it is worth considering what the NSS suggests as it relates to the key issues of trade, corruption, and development finance and the timing of its implementation.Trade

On the trade front, there is a clear theme in the strategy of “promot[ing] reciprocal economic relationships” (emphasis added) throughout the strategy. While there is no mention of how this strategy will be applied to Africa specifically, the current non-reciprocal trade framework of the African Growth and Opportunity Act (AGOA) was not designed to be permanent. It is unclear what is next when AGOA expires in 2025, but establishing a reciprocal trade framework is a logical progression and in line with the strategy’s goals. The Administration could transition to reciprocal trade agreements with individual countries and/or regional bodies that take into account capacity and socioeconomic levels by putting the eligible tariffs lines on a sliding scale and increasing the number of lines in which there would be reciprocity over time. This new framework would enhance the ability of the U.S. to compete against the various European Partnership Agreements in place throughout the continent. The strategy outlines that “fair and reciprocal trade, investments, and exchanges of knowledge…are necessary to succeed in today’s competitive geopolitical environment.” If the U.S. pursues a two-way trade platform between the U.S. and  African markets, it will surely help American companies down the road.

Importantly, the NSS discusses “economic integration” in Africa, a priority that the continent’s leaders and regional bodies have been trying to address for some time. In comparison to other regions, Africa has the lowest level of intra-regional trade, at just 18% (Europe, 69%; Asia, 52%; North America, 50%). There are efforts underway, via the Continental Free Trade Agreement (CFTA) and the Tripartite Free Trade Area (TFTA), that could bolster intra-Africa trade. A cost-effective action the Trump Administration could take to support Africa’s economic integration would be providing trade facilitation assistance to the continent’s regional bodies as they attempt to address the intra-regional trade gap.


Combatting corruption is mentioned both thematically and in the Africa section of the strategy. The Administration asserts that tackling corruption around the world will help American companies “compete fairly in transparent business climates.” Tackling corruption in Africa would be a boon for the continent’s economies as well. Estimates put the annual global cost of bribery at around $1.5 to $2 trillion – roughly 2% of global GDP.

Opaque business environments and outsized political and corruption risks have depressed African markets’ full economic potential. Facing stiff competition from emerging markets in Latin America and South East Asia, African governments must make sure their commercial climate remains attractive.

The Administration appears willing to put some muscle behind addressing graft and supporting governments looking to counter it. The strategy states that “using our economic and diplomatic tools, the United States will continue to target corrupt foreign officials and work with countries to improve their ability to fight corruption.” Trend lines indicate that some African governments and their electorates are not only recognizing the adverse impacts of corruption, but are willing to support policies and candidates that seek to tackle it head on – Angola and South Africa are recent examples of this trend. African governments looking to counter corruption should recognize the Trump Administration’s heightened interest in this issue and solicit readily available capacity building programs housed primarily in the State Department’s Office of Anti-Crime Programs and the International Unit of the Department of Justice’s Money Laundering and Asset Recovery Section.

Development Finance

The National Security Strategy states that “the United States will modernize its development finance tools so that U.S. companies have incentives to capitalize on opportunities in developing countries.” In Congress, the Senate and the House are currently both drafting legislation to revamp the legislative authorities for development finance. “Modernize” is the latest catchphrase for consolidation.

The development finance tools of the U.S. government are dispersed across numerous agencies, including the Overseas Private Investment Corporation (OPIC), USAID’s Development Credit Authority, USAID’s enterprise funds, USTDA assistance, and other smaller, regionally-focused agencies. Streamlining these agencies and dedicating more resources to one central body appears to be a policy proposal that is gaining momentum in Washington.

This proposal could ultimately help address Africa’s infrastructure deficit. From energy access and transportation, to ICT systems and water, Africa’s infrastructure woes are hindering the continent’s economic growth. Closing Africa’s infrastructure quantity and quality gap relative to the developing world and the best performers in the world could increase growth of GDP per capita by 1.7% and 2.6%, respectively. With limited new public expenditures for these capital intensive projects, African governments are relying on alternative forms of financing. A key form of financing for this effort going forward will be development finance.

The idea of establishing a single U.S. development finance institution would benefit American foreign policy and help Africa address its infrastructure deficit. Indeed, such a development would be consistent with the strategy which states: “the United States will not be left behind as other states use investment and project finance to extend their influence.” An appropriately resourced American development finance agency could be a source of much needed financing for African infrastructure projects. With Africa being a stated regional priority for the new leadership of OPIC, the continent could see increased financing activity in the near to medium term.

There are indications that Commerce Secretary Wilbur Ross and Secretary of State Rex Tillerson will visit Africa in the coming months. A robust commercial strategy will be important if there is to be strong U.S.-Africa relations given the recent controversy.

This post can also be found on CovAfrica, the firm’s blog on legal, regulatory, political and economic developments in Africa.

The Week Ahead in the European Parliament – January 19, 2018


Next week will be very busy in the European Parliament, as it is a committee week.

On Tuesday, the Constitutional Affairs Committee (“AFCO”) will vote on the composition of the European Parliament during the 2019 – 2024 legislative term.  Members of the European Parliament (“MEPs”) will also vote on whether transnational electoral lists should be set up in the EU.  See the draft report here.

On the same day, AFCO will discuss the state of play of the Brexit negotiations with Guy Verhofstadt, the European Parliament’s Brexit coordinator, and Danuta Hübner (EPP, PL), a member of the Parliament’s Steering Group.

Also on Tuesday, the Committee on Agriculture and Rural Development (“AGRI”) will vote on a draft resolution by Norbert Erdős (EPP, HU) on prospects and challenges for the apiculture sector in the EU.  The resolution aims to protect the health of bees, enhance efforts to combat the counterfeiting of honey, as well as support beekeepers and the consumption of honey in the European Union. See the draft resolution here.

On Thursday, the Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) will vote on a draft report proposing a centralised system for EU Member States to exchange conviction information on third country nationals and stateless persons. This centralised system would supplement and support the European Criminal Records Information System. See the European Commission’s proposal here, and the LIBE Committee’s draft report here.

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The Week Ahead in the European Parliament – January 12, 2018


Next week, there will be a plenary sitting of the European Parliament in Strasbourg, France. Several significant debates, votes and committee meetings will take place.

On Monday, Members of the European Parliament (“MEPs”) will debate draft legislation concerning energy consumption. Under the proposed directives on energy efficiency and renewables, consumption of energy would need to drop 40% from 2005 levels by 2030, and renewable energy sources would need to increase from 27% to 35%. See the proposed directives here and here.

On Tuesday, the plenary session of the European Parliament will debate the conclusions reached by EU leaders at the European Council Summit on December 14-15, 2017. Among other issues, MEPs will discuss the Brexit negotiations, defense policy, migration and the reform of the Eurozone.

On Wednesday, Prime Minister of Bulgaria Boyko Borissov will introduce the incoming EU Council Presidency priorities to MEPs, which include the digital economy, security, stability, and the connectedness of the Western Balkans.

On the same day, MEPs will debate the Future of Europe together with special guest Leo Varadkar, the Taoiseach of the Republic of Ireland. This will be the first discussion in a series between MEPs and EU leaders on the future of the EU.

Also on Wednesday, the plenary session of the European Parliament will vote on a draft regulation concerning an extension of EU export controls on cyber surveillance tools, which could be used to hack computers, bypass passwords, or even violate human rights. See the proposed regulation here.

Meetings and Agenda

Monday, January 15, 2018

Plenary session

17:00 – 21:00


  • Promotion of the use of energy from renewable sources
    • Committee: ITRE
    • Rapporteur: José BLANCO LÓPEZ (S&D)
  • Energy efficiency
    • Committee: ITRE
    • Rapporteur: Miroslav POCHE (S&D)
  • Governance of the Energy Union
    • Committee: ENVI and ITRE
    • Rapporteurs: Claude TURMES (GREENS/EFA), Michèle RIVASI (GREENS/EFA)
  • Conservation of fishery resources and protection of marine ecosystems through technical measures
    • Committee: PECH
    • Rapporteur: Linnéa ENGSTRÖM (GREENS/EFA)
  • Implementation of EU macro-regional strategies
    • Committee: REGI
    • Rapporteur: Andrea COZZOLINO (S&D)
  • International ocean governance: an agenda for the future of our oceans in the context of the 2030 Sustainable Development Goals
    • Committee: ENVI
    • Rapporteur: José Inácio FARIA (EPP)
  • Women, gender equality and climate justice
    • Committee: FEMM
    • Rapporteur: Linnéa ENGSTRÖM (GREENS/EFA)

Committee on Legal Affairs

19:00 – 19:30

  • Promotion of the use of energy from renewable sources (recast) (COD) – vote on draft opinion in letter form
    • Rapporteur: Axel VOSS (EPP, DE)

Committee on Civil Liberties, Justice and Home Affairs

19:00 – 21:30

  • Interoperability package – discussion with Julian KING, Commissioner for the Security Union (19.00-20.30)

Joint debate
20:30 – 21:30

  • Situation of non-reciprocity with certain third countries in the area of visa policy and assessment of the effectiveness of the reciprocity mechanism provided for in Article 1(4) of Council Regulation (EC) No. 539/2001 and Visa Suspension Mechanism – First Report – discussion with Matthias OEL, Director, DG HOME, European Commission

Tuesday, January 16, 2018

Plenary session

09:00 – 11:50


  • Review of the Estonian Presidency
  • Conclusions of the European Council meeting of 14 and 15 December 2017

12:00 – 14:00: Votes + explanations of votes

15:00 – 21:00

  • EU support to the Colombian peace process
  • Situation in Zimbabwe
  • Control of exports, transfer, brokering, technical assistance and transit of dual-use items
    • Committee: INTA
    • Rapporteur: Klaus BUCHNER (GREENS/EFA)
  • Trade and sustainable development chapters in EU trade agreements  

Wednesday, January 17, 2018

Plenary session

09:00 – 11:50
Key debates

  • Presentation of the programme of activities of the Bulgarian Presidency
  • Debate with Prime Minister of Ireland Leo Varadkar on the Future of Europe

12:00 – 14:00

Votes + explanation

  • Nomination of a Member of the Court of Auditors – Eva Lindström
    • Committee: CONT
    • Rapporteur: Indrek TARAND (GREENS/EFA)
  • Nomination of a Member of the Court of Auditors – Tony James Murphy
    • Committee: CONT
    • Rapporteur: Indrek TARAND (GREENS/EFA)

15:00 – 21:00

  • Composition of the European Parliament
    • Committee: AFCO
    • Rapporteurs: Danuta Maria HÜBNER (EPP), Pedro SILVA PEREIRA (S&D)
  • Jurisdiction, recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility, and international child abduction
    • Committee: JURI
    • Rapporteur: Tadeusz ZWIEFKA (EPP)
  • Marrakesh Treaty: facilitating the access to published works for persons who are blind, visually impaired, or otherwise print disabled
    • Committee: JURI
    • Rapporteur: Max ANDERSSON (GREENS/EFA)
  • Fight against trafficking of women and girls for sexual and labour exploitation in the EU

Thursday, January 18, 2018 

Plenary session

09:00 – 11:50


  • Implementation of the Youth Employment Initiative in the Member States
    • Committee: EMPL
    • Rapporteur: Romana TOMC (EPP)
  • Implementation of the Professional Qualifications Directive and the need for reform in professional services
    • Committee: IMCO
    • Rapporteur: Nicola DANTI (S&D)

Votes + explanation

12:00 – 14:00

Major interpellations

15:00 – 16:00

The Foreign Agents Registration Act (“FARA”): A Guide for the Perplexed

 Eighty years ago, Congress enacted the Foreign Agents Registration Act (“FARA”), requiring “foreign agents” to register with the Attorney General. As amended over the years, it applies broadly to anyone who acts on behalf of a “foreign principal” to, among other things, influence U.S. policy or public opinion. Until recently, it was a backwater of American law—and a very still backwater at that, with just seven prosecutions over the last half century.  That is changing now. Like the once obscure Foreign Corrupt Practices Act, which prosecutors revived from hibernation a decade ago, FARA may be ready for its close-up.  
In this guide, we identify the key points and provide a detailed primer on FARA registration, highlighting the ways in which it is now relevant to a broad cast of characters, including multinational corporations.

The Foreign Agents Registration Act (“FARA”): A Guide for the Perplexed

CBP Revises Rules for Border Searches of Electronic Devices

 Last week, U.S. Customs and Border Protection (“CBP”) released a revised Directive governing searches of electronic devices at the border.  These are the first official revisions CBP has made to its guidelines and procedures for devices since its 2009 Directive.  The new Directive is intended to reflect the evolution of technology over the intervening decade, and CBP’s corresponding need to update its investigative techniques.
Notably (and as in previous CBP Directives), the new Directive does not require officials to obtain a warrant before conducting searches of travelers’ devices—even if the traveler being searched is an American—based on CBP’s position that searches and seizures at the border are exempt from the Fourth Amendment’s “probable cause” requirement.  CBP nevertheless acknowledges that its searches must still meet the Fourth Amendment’s “reasonableness” requirement, which the self-imposed restrictions contained in the Directive are meant to achieve.Key Changes

  • “Reasonable Suspicion” for Forensic Searches: The new policy distinguishes between “basic” searches and “advanced” searches. “Basic” searches involve simply reviewing the device and the information contained on it, much as an ordinary user does when he or she scrolls through information on their phone or tablet.  As in the 2009 Directive, border officials are permitted to conduct such searches without any particularized suspicion.
  • “Advanced” searches, on the other hand, involve connecting external equipment to the device in order to not only gain access to it, but also to review, copy, and analyze its contents.  Under the new Directive, these more “forensic” searches now require supervisory approval and either a national security concern or reasonable suspicion of activity in violation of laws enforced or administered by CBP.
  • Protection of Information Stored in the Cloud: The new Directive continues the policy initiated by CBP in April 2017 that prohibited officials from intentionally accessing information stored remotely. In addition, the Directive specifies that in order to avoid accessing such cloud data, officials must request that the traveler disable connectivity to any network (for example, by placing the device in airplane mode). When warranted by national security, officials can disable the device’s network connectivity themselves.
  • Additional Procedures for Privileged Information: Although the 2009 Directive contained some limitations on reviewing information protected under the attorney-client privilege, the new Directive contains additional procedures that officials must follow if they encounter such data. Officials must now ask the traveler to clarify (ideally in writing) which specific files, file types, folders, or categories of information on their device may be privileged.  Such privileged information must then be segregated by a designated “Filter Team” comprised of legal and operational representatives in order to ensure the information is handled appropriately.
  • Bypassing of Passcodes and Encryption Mechanisms: The new Directive explicitly requires travelers to “present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents.” In that vein, officials may request a traveler’s assistance in unlocking their device and its applications, and may detain the device for a certain period of time if they are unable to complete their inspection because the device is passcode or encryption-protected.  Moreover, the Directive specifically states that it does not limit CBP’s ability to use external equipment or “take other reasonable measures” to make the device and its contents legible, which may mean that officials are permitted to manually bypass passcode or encryption mechanisms themselves.
  • Obtaining Technical Assistance from Non-Government Entities: Like the 2009 Directive, the new Directive permits officials, with supervisory approval, to seek technical assistance for rendering a device or the information contained on it in a condition that allows for inspection. No individualized suspicion is required. However, whereas the 2009 Directive limited the provision of such technical assistance to other “federal agencies,” the new Directive removes this limitation.  As a result, entities (such as the device’s manufacturer or an application developer) may be asked to help CBP unlock a device or its contents.

What’s Next

CBP’s searches of electronic devices have increased by nearly 60 percent since FY 2016, and they likely will continue to increase in the years to come as the use of electronic devices (and the amount of data stored on them) proliferates.

Although many have welcomed CBP’s additional, self-imposed restrictions contained in the new Directive, others believe the Directive does not go far enough.  As a result, members of Congress may continue to propose legislation that would place additional limitations on CBP’s ability to search electronic devices (particularly when the device belongs to a U.S. person), such as the Protecting Data at the Border Act introduced last year by Senator Ron Wyden (D-OR) and co-sponsored by Senator Rand Paul (R-KY).

With or without legislative action, the Directive requires that its guidelines and procedures be reviewed at least every three years.  As a result, the debate over what rules of the road should govern electronic device searches will occur much more frequently than it has in the past.

UK Government Consults on EU Cybersecurity Plans

 As we summarized last fall, the EU Commission published a new Cybersecurity Communication in September that, among other things, sets out proposals for an EU cybersecurity certification framework as part of ‎an EU “Cybersecurity Act” (see our post here and a more detailed summary here).  Just before the holidays, on December 20, 2017, the UK Government published a consultation on these proposals, which the UK Government will use‎ to help develop its position.  Key elements of the proposals that the UK Government is consulting on include:

  • Harmonizing the existing cybersecurity certification landscape to reduce costs and administrative burdens for companies by establishing a common “European Cybersecurity Certification Framework for ICT products and services.”
  • Further specifying and publishing best practices relating to incident reporting and security obligations for some digital service providers under the NIS Directive (see our reports here and ‎here).
  • Changes to the tasks and functions of ENISA, including providing ENISA with a strengthened and permanent mandate.

The UK Government also welcomes views from stakeholders on the impact of the proposals with respect to the UK’s exit from the EU.  The consultation closes on February 13, 2018.  Before then, and by January 20, 2018, the UK Government has been asked by the UK Parliament to clarify issues relating to the proposals, including on issues relating to the “Cybersecurity Act” and cybersecurity certification.

The Week Ahead in the European Parliament – January 5, 2018


Happy New Year to everyone!

Next week is a committee and political group week for the European Parliament.  Only a few committee meetings are scheduled.  Members of the European Parliament (“MEPs”) will spend most of their time with their political groups to prepare the plenary sitting that will be held from January 15 to 18, in Strasbourg.

On Thursday, the Committee on Environment, Public Health and Food Safety (“ENVI”) will exchange views with the Commission on the Commission’s report on the “State of Pediatric Medicines in the EU – 10 years of the EU Pediatric Regulation.”  This Report seeks to assess the impact of the 2006 Pediatric Regulation on public health and businesses.  See the Report here.

On the same day, the Committee on Industry, Research and Energy (“ITRE”) will consider the amendments submitted to the draft parliamentary report on the proposal for a “Regulation establishing the European Defense Industrial Development Program aiming at supporting the competitiveness and innovative capacity of the EU defense industry.”  The proposal seeks to enhance the competitiveness and innovation of the EU defense industry, including cyber defense.  Among other things, the proposal promotes collaboration among undertakings in the development of defense products and technologies and calls for a better exploitation of the results of defense research.  See the proposal for a Regulation here, the draft report here, and the amendments tabled here and here.

Meetings and Agenda

Monday, January 8, 2018

  • No meetings of note.

Tuesday, January 9, 2018

  • No meetings of note.

Wednesday, January 10, 2018

  • No meetings of note.

Thursday, January 11, 2018

Committee on Budgetary Control

15:00 – 18:30

Appointment of two Members of the European Court of Auditors

  • Partial renewal of members of the Court of Auditors – IE nominee (NLE) – Hearing of Tony MURPHY – candidate nominated by Ireland (new mandate)
    • Rapporteur: Indrek TARAND (Greens/EFA, EE)
  • Partial renewal of members of the Court of Auditors – SE nominee (NLE) – Hearing of Eva LINDSTRÖM- candidate nominated by Sweden (new mandate)
    • Rapporteur: Indrek TARAND (Greens/EFA, EE)

Committee on Employment and Social Affairs

14:00 – 15:00 

  • European Solidarity Corps
    • Rapporteur for the opinion: Brando BENIFEI (S&D, IT)

Committee on Environment, Public Health and Food Safety

09:00 – 12:30

  • Objection pursuant to Rule 106: The use of bisphenol A in varnishes and coatings intended to come into contact with food – Consideration of motion for a resolution
    • Co-rapporteurs: Martin HÄUSLING (Greens/EFA, DE), Sirpa PIETIKÄINEN (EPP, FI), Frédérique RIES (ALDE, BE)


  • Objection pursuant to Rule 106: The use of bisphenol A in varnishes and coatings intended to come into contact with food – Adoption of motion for a resolution
    • Co-rapporteurs: Martin HÄUSLING (Greens/EFA, DE), Sirpa PIETIKÄINEN (EPP, FI), Frédérique RIES (ALDE, BE)
  • Early non-objection pursuant to Rule 106: Scheme for greenhouse gas emission allowance trading within the Community. EU Emissions Trading System (EU ETS) Directive – Adoption of motion for a resolution
    • Rapporteur: Julie GIRLING (ECR, UK)
  • Exchange of views with Mr. Christos STYLIANIDES, Commissioner for Humanitarian Aid and Crisis Management, on Civil Protection Mechanism
  • Exchange of views with the Commission on the Commission report on the state of pediatric medicines in the EU – 10 years of the EU Pediatric Regulation

Committee on Industry, Research and Energy

09:00 – 12:30

  • Establishing the European Defence Industrial Development Programme aiming at supporting the competitiveness and innovative capacity of the EU defense industry – Consideration of amendments
    • Rapporteur: Françoise GROSSETÊTE (EPP, FR)


  • Accelerating Clean Energy Innovation – Adoption of draft report
    • Rapporteur: Jerzy BUZEK (EPP, PL)
  • Common rules for the internal market in natural gas – Consideration of draft report
    • Rapporteur: Jerzy BUZEK (EPP, PL)

 Committee on Civil Liberties, Justice and Home Affairs

08:30 – 09:00

Voting time

  • Mutual recognition of freezing and confiscation orders: adoption of draft report and vote on the decision to enter into interinstitutional negotiations and on the composition of the negotiating team
    • Rapporteur: Nathalie GRIESBECK (ALDE)

DFARS Cyber Rule – What Questions Should Contractors Ask Themselves in the New Year?

Since August 2015, defense contractors have been on notice that they were required to implement the security controls in National Institute of Standards and Technology (“NIST”) Special Publication (“SP”) 800-171 no later than December 31, 2017 on covered contractor information systems.  Although the focus has been on meeting this deadline, contractors should add to their New Year resolutions compliance with other areas of DFARS 252.204-7012 (“DFARS Cyber Rule” or “Rule”) and confirm that their existing processes and procedures anticipate how the Department of Defense (“DoD”) will measure compliance with the Rule in the year to come.  In particular, contractors should assess whether they are providing “adequate security” beyond NIST SP 800-171, review their obligations with regard to their supply chain’s cyber risks,  understand how the System Security Plans and Plans of Action and Milestones could be used by the government and confirm that their incident response plan incorporates the requirements of the DFARS Cyber Rules.  The answers to these and other questions are included in the article that was originally published in Law360 and is linked here .

  [The referenced article was originally published in Law360.]


The Congressional Agenda for January

The Republican-led Congress and President Trump secured their first significant legislative victory with the December passage of tax reform legislation. Following that success, the GOP passed another temporary funding bill to avert a government shutdown before adjourning for the Christmas-New Year break. As a result, congressional leaders have again put off a resolution of a major fiscal debate over the budget, along with partisan disputes over immigration, health care, and national security, among other topics. The January work period is expected to focus on these issues, while Congress aims to meet a January 19 deadline for the current stopgap funding extension. The time to strike the necessary deals will be very tight. While the Senate returns to Washington on January 3, the House announced that it would not return to Washington until the week of January 9, not the prior week, as initially planned, leaving only a week and a half to find a resolution to the number of challenging agenda items the chambers confront.

The current four-week spending bill allows Republican congressional leaders and the White House additional time to negotiate with Democrats on spending legislation to prevent a government shutdown by January 19. With Republicans focused in December on tax reform, they lacked the time to resolve the contentious spending disputes both within their own party and with the Democrats. Because spending bills may not qualify for treatment under reconciliation procedures, Senate Republicans need Democratic votes for any eventual year-long spending bill, and that need creates stark challenges for House Republicans.

Lawmakers have been working towards a potential two-year budget agreement on discretionary spending levels for the remainder of Fiscal Year (FY) 2018 and FY 2019. Such a deal is certain to increase the spending caps established by the 2011 Budget Control Act, under which Congress may only appropriate up to $549 billion for defense programs and $516 billion for non-defense programs in FY 2018, a cut from FY 2017 levels. Republican defense hawks and the Trump Administration have been aiming to boost Pentagon spending above $600 billion. In return for such an increase, Democrats have been demanding that increases in defense spending be met with a dollar-for-dollar increase in non-defense spending. So far a deal has remained elusive, but leadership on both sides have indicated the conversations are ongoing. Should a budget agreement be reached, it is highly likely that the deal to revise the 2011 Budget Control Act caps would be enacted as part of another short-term spending bill in January. If such a bill is approved, congressional appropriators will then be able to draft an omnibus spending bill for the remainder of FY 2018 reflecting the spending agreement. In such a scenario, a final spending bill would likely be considered in February.

Democrats hold significant influence in the fiscal negotiations because any eventual legislation adjusting spending caps and authorizing spending will need Democratic support, due to expected opposition from fiscal conservatives in the House and the ability of Democrats to filibuster a spending bill in the Senate. Democratic leadership can be expected to press for adding a number of their policy priorities to the current short-term funding measure, such as a resolution to the ongoing immigration debate over the Deferred Action for Childhood Arrivals (DACA) program and a measure to provide stabilization to the health insurance market. Democrats had initially pushed to include both items in the December continuing resolution but ultimately decided to keep the stopgap bill free from riders. Given the adverse reaction reported in the media to the Democrats’ failure to insist on a resolution of at least the DACA issue in December, it is likely Democrats will draw firmer lines in January and utilize their leverage over these issues during negotiations.

In the interim, Republican Senate leadership and the White House have committed to bringing DACA fix legislation to the floor in January to protect persons who were brought to the country illegally by their parents when they were children, although the details on a bipartisan compromise remains unclear. The Trump Administration announced in September that it will end the popular DACA program in March 2018 because it lacked congressional authorization. Without congressional action by March 5, the nearly 700,000 undocumented immigrants currently enrolled in the DACA program would lose their protected status and could potentially face deportation. While congressional supporters have worked to develop a legislative fix, major divisions remain over how to authorize the program by law and whether to include border security and various enhanced immigration enforcement authorities in a DACA legislative package without alienating support from either party. Senate negotiators are reportedly still working through these details while also trying to ensure that any compromise bill for DACA authorization remains narrow in scope and does not turn into a comprehensive immigration reform proposal. Any eventual legislation negotiated in the Senate may face a difficult path in the House, as Speaker Ryan promised his conference upon assuming his leadership post in 2015 that he would only bring an immigration bill to the floor if it has the support from a majority of Republicans. Because of these challenges, supporters of a DACA fix are likely to want any legislation that is negotiated to be attached to the omnibus spending bill.

Senate Republican leaders have also agreed to bring two bills to the floor for a vote in response to the calls for a legislative effort to help stabilize the health insurance market. The first measure, sponsored by Sen. Lamar Alexander, (R-TN) and Sen. Patty Murray (D-WA), would resume the “cost-sharing reduction payments” discontinued by the Trump Administration in October. These payments reduced the out-of-pocket insurance costs for low-income individuals acquiring health insurance under the Affordable Care Act. The second measure, sponsored by Sen. Susan Collins (R-ME) and Sen. Bill Nelson (D-FL), would create a “reinsurance ” mechanism for federal funding to assist companies with backup coverage when policyholders have catastrophic medical costs. Both of these proposals will need to maintain significant Democratic support in order to be enacted, because conservative Republicans are wary of propping up the health-insurance marketplace established by the Affordable Care Act. It is likely that the measures would have to be linked to a piece of must-pass legislation, such as the omnibus spending bill, in order to ensure passage.

While DACA and health insurance market stabilization provisions were not included in the stopgap funding bill, the measure did include a short extension of expiring Foreign Intelligence Surveillance Act (FISA) authorities. Section 702 of FISA is considered by the intelligence community to be a pillar of U.S. counter-terrorism efforts, but many privacy and civil liberties advocates are critical of the program and have called for reforms. National security hawks and privacy advocates on Capitol Hill have been debating how to reauthorize the program, for how long to extend the surveillance authority, and what enhanced civil liberties protections can be included in a renewal. Several competing proposals have been introduced in both chambers, but lawmakers could not come to an agreement on how to provide for a long-term reauthorization of the program before its December 31 expiration date. Lawmakers instead provided for a short-term extension of the current authority in the stopgap funding bill, which will expire on January 19. Privacy advocates, including members of the House Freedom Caucus, want to see additional and significant protections put in place to protect Americans from intelligence activities. The Freedom Caucus reportedly secured a commitment from House leadership, in exchange for their votes on the stopgap funding bill, that they would be allowed to offer requested amendments to a long-term FISA reauthorization during floor debate, but it is unclear which bill will emerge as the vehicle. Members of the House Judiciary Committee advanced a bipartisan proposal that strengthens civil liberties protections and would reauthorize the program for six years, but a competing proposal from the House Intelligence Committee provides for less extensive privacy controls. Across the Capitol, Sen. Patrick Leahy (D-VT) and Sen. Mike Lee (R-UT) introduced a bill that places additional restrictions on intelligence activities. In October, the Senate Intelligence Committee advanced a bill that would extend Section 702 authority through 2025 and include modest reforms. Sen. Rand Paul (R-KY) and Sen. Ron Wyden (D-OR) and a bipartisan group of House lawmakers have also introduced legislation that would add more significant privacy protections under Section 702 and maintain the sunset clause requiring congressional reauthorization every four years. How these competing approaches will be sorted out and the program, a cornerstone of national security policy in an age of threats emanating from sources beyond traditional nation-state adversaries, remains uncertain.

Another program extended as part of the current continuing resolution is the flood insurance program, which the House has voted to reform but the Senate has not. The existing investor visa program, the so-called EB-5 program (named for the codified provision of the Immigration and Nationality Act at which it is found), has been renewed through appropriations bills for some time now. Negotiations between program supporters and those who want to reform the program have been ongoing for some time. Program supporters are likely aiming to resolve the matter and secure legislation soon because of the prospect that U.S. Citizenship and Immigration Services, the agency that oversees the program, will make significant regulatory changes to the program if legislation is not forthcoming.

Another issue that has previously roiled omnibus spending bills is the looming shortfall in various pension plans, especially those for coal miners. Resolution of that issue, and perhaps broader pension issues, is also likely to bedevil negotiations over spending caps and any omnibus spending bill that results from an overall spending deal.

Lurking in the background of the substantive discussions over spending is the political calculus both parties are making: if the negotiations fail, which party will be blamed for any eventual government shutdown. With control of both legislative chambers and the White House, Republicans fear they will be blamed for any shutdown, but some are suggesting that it depends on the reason why the government shuts down. Some Republicans think that if there is a deal on spending but not on DACA, they could point the finger at Democrats, and that could induce enough Democratic senators, especially from states won by President Trump, to support a spending bill and avoid a shutdown. These kinds of political calculations will be made as the January 19 deadline approaches and each party decides what is in its best political interests, as well as what is in the country’s best interests.

Aside from their work on spending caps and the omnibus spending bill dependent on resolving the larger budget issues, the Senate is also expected to take up another funding matter in January- an $81 billion disaster aid bill that passed the House in December, but stalled in the Senate. Republican Leader Mitch McConnell (R-KY) was unable to strike an agreement to speed up the floor debate on the measure before the chamber adjourned for the holidays, leaving it as another item on the to-do list for January. The bill provides disaster aid funding for communities affected by the recent hurricanes in Texas, Florida, Puerto Rico and the U.S. Virgin Islands, as well as wildfires in California. Democrats argued that the bill does not provide enough aid to Puerto Rico and the U.S. Virgin Islands, while the Texas congressional delegation is pushing for more money specifically for recovery efforts in their state. Any additional funds earmarked for Texas would likely be met with demands from other delegations, in particular Florida and California, whose communities were also hard-hit by storms or fires. Congress has already approved more than $130 billion in aid for natural disasters that occurred in 2017, and much of that money remains unspent, so there is less real-world urgency in wrapping up action on the next disaster relief bill.

During this work period lawmakers may also consider a package of tax extenders, popular tax breaks that expired at the end of 2016, but were not included in the newly-enacted tax reform legislation. In late December, Senate Finance Committee Chairman Orrin Hatch (R-UT) unveiled legislation to renew several dozen of the lapsed tax breaks through the end of 2018. House Ways and Means Committee Chairman Kevin Brady (R-TX) and other committee members have publicly stated that they are still discussing how to deal with the expired tax breaks and discussions will not begin until January at the earliest. Because the two chambers are on different timelines, it is not likely the legislation will be resolved in the coming month.

As these major policy negotiations are occurring, Congress must also consider whether to raise or suspend the debt ceiling in order for the U.S. Treasury to avoid a default. Based on current projections, the Treasury can continue to take “extraordinary measures” to cover the nation’s debts until mid-March. Many view the eventual omnibus spending package as a likely vehicle for the debt limit increase.

Finally, among the Senate’s signal achievements of the past year was the number of federal judges it confirmed. It is likely the Senate will continue to focus floor time on confirming both executive branch appointees, in particular those nominated to regulatory agencies (at which they can advance the President’s deregulatory agenda), and judicial nominees.