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Jonathan Wakely

Jonathan Wakely practices at the intersection of national security and the private sector, advising clients on a range of significant foreign direct investment, national security, cybersecurity, supply chain security, and public policy matters. He has particular expertise representing leading global investors and U.S. companies in securing U.S. national security-related regulatory approvals for foreign investments, and has advised on transactions with a combined value of over $250 billion.

Jonathan regularly represents clients before the Committee on Foreign Investment in the United States (CFIUS), the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (better known as “Team Telecom”), and the Defense Counterintelligence and Security Agency (DCSA) in proceedings related to the mitigation of foreign ownership, control, or influence (FOCI). Clients regard Jonathan as an “industry veteran,” commenting that he’s “fantastic,” “an excellent lawyer,” and applauding his “great understanding of CFIUS work” (Chambers USA).

Jonathan has represented clients on national security reviews in virtually all sectors, including semiconductors, telecommunications, financial services, software, IT services, energy, and real estate. His representations include, for example, the landmark CFIUS-based defense of Qualcomm against the attempted hostile takeover by Broadcom; securing CFIUS approval for the $7.9 billion acquisition of Westinghouse by Brookfield Asset Management and Cameco; and securing approval from Team Telecom for Univision’s $4.8 billion merger with Televisa. He has negotiated and advised companies on compliance with many of the most significant, complex, and sensitive national security agreements of the past decade.

Jonathan regularly advises clients on emerging areas of national security regulation, including outbound investment screening and the Biden Administration’s executive orders on protecting sensitive personal data and information and communications technology and services (“ICTS”). Clients also turn to Jonathan for advice on strategic business and policy matters related to U.S.-China competition. He is regularly engaged by multinational businesses—including some of the world’s leading technology companies—to assist in developing legal and business strategies related to positioning with respect to China.

Jonathan has been recognized by various publications for his work on national security matters, including as one of the world’s leading foreign investment lawyers under 40 by Global Competition Review, as a “DC Rising Star” by The National Law Journal, as a “Rising Star” by Law360, and as a leading CFIUS expert by Chambers USA.

In addition to his legal practice, he is an adjunct professor at the Georgetown University Law Center, where he teaches a course on national security and the private sector. Jonathan has also published extensively on matters related to the regulation of foreign investment; his articles have appeared in the Harvard National Security Journal, The International Lawyer, and the Global Trade and Customs Journal.

Before joining Covington, he served as a political analyst with the Central Intelligence Agency (CIA), where he provided strategic analysis to the President and other senior policymakers.

Contact:Read more about Jonathan WakelyEmail

Introduction

On December 27, 2024, the U.S. Department of Justice (“DOJ”) issued the Final Rule implementing President Biden’s February 28, 2024 Executive Order on “Preventing Access to Americans’ Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern” (the “EO”). The Final Rule solidifies a new national security regulatory regime focused on protecting bulk U.S. sensitive personal data and government-related data from countries of concern, including the People’s Republic of China (“PRC” or “China”), and represents the latest step in the U.S. government’s whole-of-government effort to “de-risk” with respect to China. The Final Rule marks the first time that U.S. persons will be categorically prohibited from engaging in certain transactions that may result in foreign access to bulk U.S. sensitive personal data and government-related data. It also provides that certain other transactions will be “restricted,” meaning they are prohibited unless the U.S. business first implements a range of security requirements, which in some cases will be onerous or costly. The Final Rule accordingly could have wide-ranging implications for U.S. companies across various industries. The Final Rule takes effect 90 days after publication in the Federal Register, which is set for January 8, 2025, although certain compliance requirements will not take effect until 270 days following publication.

In parallel with the release of the Final Rule, on January 3, 2025, the U.S. Cybersecurity and Infrastructure Security Agency (“CISA”), which is part of the U.S. Department of Homeland Security (“DHS”), released the final security requirements (the “Security Requirements”). The Security Requirements set forth the measures that U.S. persons must satisfy in order to engage in restricted transactions, and are incorporated by reference into the Final Rule.

Importantly, as we discussed in our analysis of the Advance Notice of Proposed Rulemaking (“ANPRM”) and our analysis of the Notice of Proposed Rulemaking (“NPRM”), the Final Rule is a national security regulation designed to address identified risks to U.S. national security—not a privacy regulation designed to protect privacy or other individual interests. Consequently, while the Final Rule regulates transactions involving personal data, many of the concepts and definitions diverge materially from those in existing privacy regimes. The Final Rule stems from the U.S. government’s increasing unwillingness to tolerate foreign adversary access to U.S. personal data. As DOJ explained in the preamble to the Final Rule, “[t]his rule will prevent . . . foreign adversaries from legally obtaining [bulk U.S. sensitive personal data or government-related data] through commercial transactions with U.S. persons, thereby stemming data flows and directly addressing the national security risks identified in the [EO].” DOJ cited examples such as (1) the ability of journalists to track the movements of U.S. President Joe Biden, U.S. Vice President Kamala Harris, and now President-Elect Donald Trump through their bodyguards’ use of a fitness app; and (2) the ability to track U.S. government personnel movement through the purchase of location information and digital advertising data—that demonstrate the U.S. national security risks associated with foreign adversary access to commercially available data. Finally, DOJ made a particular point of explaining that certain data that is anonymized or depersonalized presents U.S. national security risks, especially with respect to the ability of adversaries to use “bulk human genomic data[] to enhance military capabilities that include facilitating the development of bioweapons.”Continue Reading Department of Justice Issues Final Rule to Implement Bulk U.S. Sensitive Personal Data and Government-Related Data Executive Order

Updated August 8, 2023.  Originally posted May 1, 2023.

Last week, comment deadlines were announced for a Federal Communications Commission (“FCC”) Order and Notice of Proposed Rulemaking (“NPRM”) that could have significant compliance implications for all holders of international Section 214 authority (i.e., authorization to provide telecommunications services from points in the U.S. to points abroad).  The rule changes on which the FCC seeks comment are far-reaching and, if adopted as written, could result in significant future compliance burdens, both for entities holding international Section 214 authority, as well as the parties holding ownership interests in these entities.  Comments on these rule changes are due Thursday, August 31, with reply comments due October 2.

Adopted in April, the FCC’s item proposing the new rules also includes an Order requiring all holders of international Section 214 authority to respond to a one-time information request concerning their foreign ownership. Although last week’s Federal Register publication sets a comment deadline for the proposed rules, the reporting deadline for the one-time information request has not yet been established.  However, because the FCC has fulfilled its statutory obligations regarding the new information collection presented by the one-time reporting requirement, carriers — as well as entities holding an ownership interest in these carriers — should prepare for the announcement of the reporting deadline.

The FCC’s latest actions underscore the agency’s ongoing desire to closely scrutinize foreign ownership and involvement in telecommunications carriers serving the U.S. market, as well as to play a more active role in cybersecurity policy. These developments should be of interest to any carrier that serves the U.S. market and any financial or strategic investor focused on the telecommunications space, as well as other parties interested in national security developments affecting telecommunications infrastructure.

Proposed Rule Changes for International Section 214 Authority

The FCC’s proposed changes to its regulation of international Section 214 authorizations generally concern additional compliance, disclosure, and reporting requirements. The FCC’s proposed rule changes are far-reaching, but the most notable of the proposals concern the following:Continue Reading Comments Due August 31 on FCC’s Proposal to Step Up Review of Foreign Ownership in Telecom Carriers and Establish Cybersecurity Requirements

May 23, 2023, Covington Alert

The U.S. Department of the Treasury (“Treasury”), in its capacity as chair of the Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”), recently posted two new frequently asked questions (“FAQs”) to CFIUS’s website that have important implications for parties planning transactions subject to the Committee’s jurisdiction.

First, CFIUS confirmed its recent practice of requiring detailed information on all direct or indirect foreign ownership involved in a transaction, including disclosure of all limited partners (or “LPs”) of an investment fund, without regard to any pre-existing agreements between the fund sponsor and investor regarding disclosure.

Second, CFIUS offered guidance regarding the meaning of “completion date” for purposes of when a mandatory filing must be submitted for a multi-stage transaction. The guidance could have broad implications, especially for some venture financing transactions, as it introduces uncertainty regarding the ability of investors to use a staged transaction to acquire an initial, passive equity interest prior to submitting a mandatory CFIUS filing with respect to a subsequent acquisition of control or certain non-passive rights. The new guidance seems at odds with language that appears in the preamble to the regulations implementing the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”), and the practice of transaction parties for the last several years. CFIUS did not provide any explanation for this change, which raises questions as to why the Committee has issued the guidance now.

Each of these developments is discussed in more detail below.

1. CFIUS may require detailed information regarding all foreign persons involved directly or indirectly in a transaction, including limited partners in an investment fund.

Treasury published the following FAQ on May 11:

Does CFIUS require information on all foreign persons, such as limited partners in an investment fund, that would hold an interest in a U.S. business, whether directly or indirectly, as part of the transaction?Continue Reading CFIUS Issues Guidance On Disclosure of Information About Limited Partner Investors and Application of Mandatory Filing Rules to Multi-stage Transactions

On March 21, 2023, the Department of Commerce (“Commerce”) published a Notice of Proposed Rulemaking (the “Commerce Proposed Rule”) to implement certain provisions of the CHIPS and Science Act of 2022 (“CHIPS Act”) that place restrictions on certain activities of businesses receiving federal funding pursuant to the CHIPS Act (“Commerce…

Continue Reading National Security Update – Departments of Commerce and Treasury Release Notice of Proposed Rulemaking Regarding CHIPS “Guardrails”

On the heels of Russia’s invasion of Ukraine, pandemic-induced supply chain disruptions, and U.S.-China tensions over Taiwan, 2022 accelerated a sweeping effort within the U.S. government to make national security considerations—especially with respect to China—a key feature of new and existing regulatory processes. This trend toward broader national security regulation, designed to help maintain U.S. strategic advantage, has support from both Republicans and Democrats, including from the Biden Administration. National Security Advisor Jake Sullivan’s remarks in September 2022 capture the tone shift in Washington: “…[W]e have to revisit the longstanding premise of maintaining ‘relative’ advantages over competitors in certain key technologies…That is not the strategic environment we are in today…[w]e must maintain as large of a lead as possible.”

This environment produced important legislative and regulatory developments in 2022, including the CHIPS and Science Act (Covington alert), first-ever Enforcement and Penalty Guidelines promulgated by the Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”) (Covington alert), President Biden’s Executive Order on CFIUS (Covington alert), new restrictions under U.S. export control authorities targeting China (Covington alert), and proposals for a new regime to review outbound investments by U.S. businesses (Covington alert). The common thread among these developments is the U.S. government’s continuing appetite to use both existing and new regulatory authorities to address identified national security risks, especially where perceived risks relate to China.

With a Republican majority in the U.S. House of Representatives riding the tailwinds of this bipartisan consensus, 2023 is looking like a pivotal moment for national security regulation—expanding beyond the use of traditional authorities such as trade controls and CFIUS, into additional regulatory domains touching upon data, communications, antitrust, and possibly more. In parallel, the U.S. focus on national security continues to gain purchase abroad, with foreign direct investment (“FDI”) regimes maturing in tandem with CFIUS, and outbound investment screening gaining traction, for example, in the European Union (“EU”). It is crucial for businesses to be aware of these developments and to approach U.S. regulatory processes with a sensitivity towards the shifting national security undercurrents described in greater detail below.Continue Reading Will 2023 Be an Inflection Point in National Security Regulation?

It has been publicly reported that discussions are underway within the Trump Administration for a coordinated interagency initiative to remove key industrial supply chain dependencies from overseas, especially China, and redouble efforts to secure such supply chains in the United States. While this initiative proceeds alongside ongoing efforts to secure…
Continue Reading Frequently Asked Questions and Answers Regarding the Trump Administration’s Push to Secure Supply Chains in the United States/New Interagency Effort Aimed at Expanding Sectors, Measures

In remarks last night, President Obama announced his long-planned executive actions to reform the U.S. immigration system.  The President will sign the first of such orders today, despite intense opposition from Republicans in Congress, who believe that the President’s actions are outside the law and contrary to Congress’s authority to …
Continue Reading President Obama Announces Executive Action on Immigration, while Congress Considers its Response

On July 14, the U.S. Court of Appeals for the District of Columbia Circuit decided Ralls Corporation v. Committee on Foreign Investment in the United States — the first ruling by a federal circuit court on a CFIUS case.  Ralls, a U.S. company owned by two Chinese nationals, sued CFIUS…

Continue Reading DC Circuit Calls for More Transparency in CFIUS Process