Policy and Legislation

On 26 October 2023, the UK’s Online Safety Bill received Royal Assent, becoming the Online Safety Act (“OSA”).  The OSA imposes various obligations on tech companies to prevent the uploading of, and rapidly remove, illegal user content—such as terrorist content, revenge pornography, and child sexual exploitation material—from their services, and also to take steps to

On October 13, 2023, the Food and Drug Administration (FDA) announced that the guidance entitled “Prior Notice of Imported Food Questions and Answers (Edition 4): Guidance for Industry,” originally released as draft guidance on September 13, 2022, has been made final. FDA received no comments on the draft guidance, and as a result

October 17, 2023, Covington Alert

What You Need to Know

  • On October 4, 2023, Deputy Attorney General Lisa Monaco provided new and expanded policy guidance on corporate criminal enforcement, announcing a new Mergers and Acquisitions Safe Harbor Policy (“Safe Harbor Policy”).
  • The Safe Harbor Policy provides acquiring companies an opportunity to avoid criminal charges if they voluntarily self-disclose misconduct at acquired companies within six months of a merger or acquisition (“M&A”), fully cooperate in any DOJ investigation, engage in timely and appropriate remediation within one year of the transaction closing date, and pay restitution or disgorgement, as appropriate.
  • The Safe Harbor Policy—which we expect will be formalized in writing and incorporated into the Justice Manual—appears to draw heavily on policies and guidance from the Criminal Division dating back to 2008, but that will now be formalized, clarified, and applied across the Department, with different parts of the Department “tailor[ing] its application . . . to fit their specific enforcement regime.”
  • As with all of the Department’s recent policy announcements concerning the benefits of voluntary disclosure, significant questions remain. We discuss some of those below, and we will be watching to see how DOJ applies the Safe Harbor Policy in practice. At a minimum, however, companies should ensure that their pre- and post-closing diligence and integration processes are designed to quickly identify legacy or ongoing misconduct at acquired companies so that they may have an opportunity to consider the expected benefits and burdens associated with a voluntary disclosure under the Safe Harbor Policy.
  • In addition to announcing the Safe Harbor Policy, Deputy Attorney General Monaco noted a “dramatic” expansion in national security enforcement, new enforcement tools that the Department is deploying, continued focus on incentivizing companies to seek compensation clawbacks from individual wrongdoers, and even more policy changes to come. Deputy Attorney General Monaco’s announcement follows recent shifts in enforcement remedies sought by the Department, such as divestiture in certain criminal antitrust cases—an unprecedented remedial measure.

Continue Reading DOJ Provides Further Voluntary Disclosure Incentives, This Time Linked to M&A Transactions, and Signals Other Areas of Focus

On June 20, 2023, the Federal Communications Commission (“FCC”) released a Notice of Proposed Rulemaking (“NPRM”) to require cable operators and direct broadcast satellite (“DBS”) providers to display an “all-in” price for their video programming services in their billing and marketing materials.  The White House issued a press release that same day expressing its support

May 18, 2023, Covington Alert

Today, the Supreme Court issued its opinion in Gonzalez v. Google LLC, a case about whether Section 230 of the Communications Decency Act (47 U.S.C. § 230) protected YouTube’s recommendation algorithms from a claim of secondary liability under the Anti-Terrorism Act (ATA). In a short, three-page per curiam opinion

In August 2022, the Chips and Science Act—a massive, $280 billion bill to boost public and private sector investments in critical and emerging technologies—became law.  We followed the bill from the beginning and anticipated significant opportunities for industry to inform and influence the direction of the new law’s programs. 

One such opportunity is available now.  The U.S. Department of Commerce recently published a request for information (RFI) “to inform the planning and design of the Regional Technology and Innovation Hub (Tech Hubs) program.”  The public comment period ends March 16, 2023.

Background

The Chips and Science Act authorized $10 billion for the U.S. Department of Commerce to establish a Regional Technology and Innovation Hub (Tech Hubs) program.  Specifically, Commerce was charged with designating at least 20 Tech Hubs and awarding grants to consortia composed of one or more institutions of higher education, political subdivisions, state governments, and “industry or firms in relevant technology, innovation, or manufacturing sectors” to develop and deploy critical technologies in those hubs.  $500 million has already been made available for the program, and Commerce will administer the program through the Economic Development Administration (EDA).Continue Reading Commerce Seeks Comments on Regional Tech Hubs Program

There has been a substantial increase in the use of the Internet across the African continent, aided by ongoing investment into local digital infrastructure, reduction in the associated costs, and improved user access. This has allowed both individuals, and private and public entities, the ability to access, collect, process and/or disseminate personal data more easily,

If there is a silver lining to most crises, the accelerated move toward digitized commerce globally and in Africa may be one positive outcome of the COVID-enforced lockdown. It is welcome news there that the South African Minister of Communications and Digital Technologies (“Minister”) published the Draft National Data and Cloud Policy (in Government Gazette

On Wednesday, October 6th, Governor Gavin Newsom signed SB 41, the Genetic Information Privacy Act, which expands genetic privacy protections for consumers in California, including those interacting with direct-to-consumer (“DTC”) genetic testing companies.  In a recent Inside Privacy blog post, our colleagues discussed SB 41 and the growing patchwork of state genetic privacy laws