K&L Gates’ national reach and preeminence in the areas of government affairs, public policy, technology and other vital disciplines make the firm well-suited to assist clients in all aspects of the implementation and evolution of the Act and related regulations. Our interdisciplinary Homeland Security Practice group consists of lawyers throughout the country that bring dedicated expertise to bear on these contemporary issues, including the following:
Government Affairs
The Act represents an unprecedented restructuring of the executive branch of the federal government. The effect of the Act on federal law, policy and governance is only beginning to unfold and will evolve over time. The Act also contains provisions requiring extensive federal-state coordination for homeland security preparedness and response. One thing is clear: the actions and decisions of federal, state and local government officials in dealing with homeland security laws, regulations and procedures will have a critical impact on all segments of the economy, American business, and the general public.
K&L Gates’ government affairs practice is well-positioned to provide clients with sophisticated assistance in federal, state and local aspects of homeland security-related matters. Our team includes the former Attorney General of the United States, Dick Thornburgh; former U.S. Senator Slade Gorton, former Assistant Secretary, International Affairs for the Department of Homeland Security, the former Deputy Secretary for Legislative Affairs to then-Governor Tom Ridge, Peter Gleason; and the former president and chief executive officer of one of the major trade associations in the United States, George Koch. The team provides client services in the realms of legislative and regulatory advocacy; legislative and regulatory monitoring; federal, state and local budget/appropriations counseling and advocacy; and similar efforts. K&L Gates’ government affairs experts are carefully observing the emerging homeland security environment and can help decipher it. For more information on this aspect of our practice, please visit the Public Policy And Law practice description .
Government Contracts and Public Sector Technology
The Act contains unprecedented provisions for the procurement of homeland security-related goods and services as well as unprecedented opportunities for companies to engage in homeland security-related research and development.
As a result of this legislation, federal procurements are expected to increase dramatically for IT and other products and services designed to enhance the nation's security. Indeed, the DHS had close to a $5.9 billion budget for IT alone in FY 2006, focusing on information security, reliable communications and advanced knowledge systems. The new department has four additional procurement-related priorities: first responders, biological defense, border security and the fusion of navigation and intelligence.
K&L Gates is poised to counsel the firm's clients on the new DHS contracting opportunities. Our government contracts and public sector technology professionals are already conversant with the special procurement provisions of the Act, including its special streamlined acquisition procedures. With its extensive background in bid and proposal preparation, contract negotiation and performance, licensing, commercial item contracting, and other IP issues, K&L Gates is capable of providing clients with the assistance they need in every aspect of contracting in this sector.
The Act also creates a special R&D authority within the DHS to conduct homeland security research, and the DHS is expected to spend $1.3 billion in FY 2006 in R&D funding. Many of the R&D projects that will be sponsored by the DHS will involve IT, biotechnology, and related efforts. In addition to traditional contract vehicles, other agreements will be available that will enable contractors to maximize their potential return on investment (in the form of retained intellectual property and commercial market prospects) while minimizing the usual regulatory burdens that accompany traditional R&D contracts. K&L Gates is familiar with these alternative vehicles (including “other transactions” and similar agreements), and has participated in the drafting and negotiation of a number of these cutting-edge transactions. For more information on this aspect of our practice, please visit our Government Contracts and Procurement Policy practice description .
Protecting the nation against a whole new range of terrorist weapons is one of the greatest challenges that the DHS will face. Developing vaccines and treatments to address a long list of possible biological, chemical, and nuclear weapons, as well as better ways to detect possible releases of these weapons, will be a major task of the new Department in the coming years.
K&L Gates is working with companies researching new therapies for bioterrorist weapons and research institutes interested in working on the development of other countermeasures. K&L Gates is also helping research laboratories comply with new restrictions and regulations governing chemicals and other materials that are currently used in a wide range of biomedical research but that could be diverted and used to create bioterrorist weapons.
K&L Gates represents a range of clients whose products are being used by the intelligence community. Our lawyers include former insiders and supervisors of intelligence agencies who maintain high-level contacts at the CIA, NSA, DIA, FBI, congressional committees, and in the office of the Homeland Security Advisor. We also have relationships with many of the components of federal agencies transferred to the DHS. Our understanding of programs that the community conducts enables us to anticipate the community's needs and priorities.
Anti-Money Laundering
TheThe USA PATRIOT Act of 2001 gives broad additional authority to a number of federal agencies to investigate and prosecute institutions and individuals suspected of money laundering activity. Some of these entities, including mutual funds and investment advisers, insurance and mortgage brokers and even yacht brokers and jewelers were not previously subject to such regulation and therefore face a greater challenge to come into compliance.
Leveraging our years of experience representing clients before regulatory oversight bodies such as the SEC, CFTC, NASD, NYSE, OCC, FDIC, OTS and the Federal Reserve Board and our specific anti-money laundering (AML) experiences, K&L Gates’ cross-practice AML team can assist with:
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Strategic risk assessments of present business practices and information systems infrastructure;
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Structuring and performing internal investigations, being sensitive to employment law issues as well as privacy regulations for both employees and customers;
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Responding to regulatory inquiries and enforcement actions thoroughly and effectively while maintaining the security of sensitive competitive information;
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Establishing, reviewing and documenting compliance practices, including procedures, literature, programs and training; and
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Analyzing of the privacy, data protection, information security and cybercrime prevention considerations inherent in reviewing customer accounts and reporting activity to governmental supervisory bodies.
Reviewing and drafting third-party vendor relationship agreements, as an enhanced technology infrastructure may be the best way to bring present practices into compliance with the requirements under the PATRIOT Act and subsequent regulations imposed by financial regulators.
Information Security and Privacy
Information security has become an essential aspect of virtually any business relationship. The need for trustworthy data is unquestioned and business partners and customers increasingly demand assurances of adequate information security and responsibility for the consequences of adverse security incidents. Whether as a part of traditional corporate transactions (mergers and acquisitions; joint ventures), online strategic alliances, online retail services or supply chain management, the issues of information security have become high-profile from a legal perspective. The reason is, in fact, quite simple: most incidents of information security involve the execution of an illegal act—theft, deception, infringement or fraud.
Information security and homeland security will be closely managed. Indeed, the Homeland Security Act emphasizes that a vital tool for achieving improved national security will be the analysis and evaluation of many types of information, including business data that is historically protected by the good information security practices. Privacy also has the potential to collide with homeland security objectives.
K&L Gates has been involved in cybersecurity issues since they first arose over a decade ago. Because we work to form broad coalitions of businesses, consumers, privacy groups, and interested individuals, we are able to give our clients a powerful voice. Among the clients that we advise in this area are Americans for Computer Privacy, the Business Software Alliance, and Microsoft. We guided the technology industry through the encryption struggle, which ended in victory. We have been involved in the development of critical infrastructure protection policy, and we played a significant role in the USA PATRIOT Act and the Homeland Security bill. We have addressed electronic surveillance, computer crime, and international agreements to improve cybersecurity such as the Council of Europe's cyber-treaty.
Much of the work that K&L Gates does in the area of information security focuses on ensuring that statutes and executive branch policies do not impose technology mandates on industry. We have worked to keep the field clear of unnecessary regulation while supporting the adoption of necessary statutory protections for information voluntarily shared with the federal government to improve security.
We advise a number of clients on infrastructure security issues, with a focus on nuclear power plant security. Our representations in this field have addressed federal nuclear security, commercial reactor security, and the development of new technologies for breach detection and security enhancement.
The K&L Gates privacy and information management team delivers privacy and information security solutions to companies operating domestically and internationally across a wide range of industries. For our team, “privacy” includes “data protection,” and “information management” means helping to ensure the integrity, reliability and security of our clients’ information assets. For more information on these aspects of our practice, please visit the Privacy, Data Protection and Information Management practice description .
International Trade
The United States Customs Service is among the agencies that the Act transferred to the DHS. This "new" Customs Service will continue to serve as the primary enforcement agency protecting the nation's borders. The Customs Service performs many diverse tasks to ensure homeland security, flow of trade and compliance, inspections at ports of entry, and seizures of illegal drugs and contraband. Among its many functions, the Customs Service is responsible forensuring that all goods entering and exiting the United States do so in accordance with all applicable U.S. laws and regulations. For example, Customs monitors imports to ensure that they comply with the myriad of laws involving public health, safety, and protection of intellectual property rights. In addition, the agency enforces export regulations for various other government agencies, such as the U.S. Department of Commerce, Bureau of Industry and Security, Department of State, Office of Defense Trade Controls, Bureau of Alcohol, Tobacco and Firearms, Drug Enforcement Administration, Nuclear Regulatory Commission, and the Office of Foreign Assets Control.
K&L Gates professionals on both coasts routinely provide advice on a wide range of export controls and customs issues. As a result, K&L Gates is ready to assist clients with satisfying international trade requirements under the DHS' new jurisdiction. The firm represents a full range of transportation industry clients involved in domestic and foreign commerce-airlines, railroads, shippers, shipping lines, and ports. We have played a significant role in all recent transportation security legislation, including the port and maritime security bill, advising our clients on potential opportunities and issues resulting from such legislation.
Border security is an increasingly important issue and it is an issue that K&L Gates is well equipped to address. Our homeland security team includes a former Senate Judiciary Committee Counsel who worked extensively on border security legislation before overseeing the Office of Immigration Litigation as a Deputy Assistant Attorney General in the Justice Department.
Insurance
The Act seeks to prevent future acts of terrorism against the United States and its citizens, but risks remain. Businesses need to insure against terrorism and related risks to protect their stakeholders and need to collect policy benefits in the event of a terrorism loss. K&L Gates has the experience and expertise to counsel businesses on the insurance issues relating to homeland security and terrorism risks. Over 75 K&L Gates lawyers are concentrated in what has become one of the largest insurance coverage practice groups in the nation. Our success in recovering insurance assets on behalf of clients has been reported in the Wall Street Journal, The New York Times, Business Insurance and various trade periodicals. In November 2001, Of Counsel Magazine devoted its lead article to the nation's top insurance coverage law firms. While discussing several firms and their practices, the article observed that K&L Gates "is recognized as perhaps the leader in insurance coverage representation."
K&L Gates has substantial experience in handling the types of claims likely to arise from terrorist acts, including claims under property, liability and business interruption coverages. In particular, K&L Gates insurance coverage lawyers have represented businesses with insurance claims arising from the September 11 attacks and have the experience and resources to pursue these claims.
The Terrorism Risk Insurance Act of 2002 (TRIA) requires that all commercial property and casualty insurers offer terrorism coverage, and also provides a federal backstop for these insurers in the event of a future terrorist strike. The TRIA, as well as the guidance and regulations promulgated by the Department of Treasury, raise a host of issues for businesses seeking to obtain coverage for terrorism. K&L Gates is able to counsel clients on the procurement of terrorism coverage and the scope of such coverage. For more information on this aspect of our practice, please visit the Insurance practice description .
Environmental Safety and Security
The heightened national awareness of security and emergency preparedness is perhaps no more evident than in the environmental arena. Congress has focused on the protection of physical infrastructure and industrial assets against terrorist attacks, preparation for and response to chemical, biological, and radiological attacks, and improvement of disaster preparedness and response capabilities. The Environmental Protection Agency has created the Office of Homeland Security to act as liaison with the DHS and to coordinate homeland security activities and policy development within EPA. And the Department of Justice has declared that homeland security is the number one enforcement priority for its Environment and Natural Resources Division. (Click here to view a copy of the U.S. Environmental Protection Agency Strategic Plan for Homeland Security.)
Two common objectives of homeland security and environmental protection are the protection of critical infrastructure against terrorist attacks and enhancement of our emergency preparedness and response capabilities. Critical infrastructure includes drinking water supply and distribution systems, chemical facilities and the hazardous materials transportation system. A number of initiatives directed at increasing security and improving emergency preparedness and response capabilities at these facilities have been recently developed, and more are under development.
K&L Gates’ Environment and Natural Resources practice has the experience and resources to assist clients with this developing body of regulatory requirements. We presently represent a number of clients in the chemical industry, water utilities and oil and natural gas transportation industry and are sensitive to the potential impacts of these new requirements on our clients’ activities. We can assist clients in commenting on proposed rules, counsel them on compliance with new regulations, and represent them before the agencies and in court when necessary to ensure that their views are heard or their interests are defended. For more information on this aspect of the practice, please visit the Environment and Natural Resources practice description.
Emergency Preparedness and Response
The anthrax attacks exposed important vulnerabilities in the nation's public health resources, and Congress has acted quickly to provide needed assistance to state and local governments and their first responders. K&L Gates is advising the American Society for Therapeutic Radiology and Oncology, a group of physicians working to develop resources and information needed by first responders who might have to deal with a nuclear terrorism response. We also represent numerous nuclear energy clients, utilities, and transportation companies, advising them on matters relating to increased security requirements
Charitable Organizations
Charities Charities are subject to an array of statutes, regulations and orders regulating their activities and designed to disrupt the funding of terrorist organizations. The scope of the penalties associated with these laws is broad and the severity of the penalties is sufficiently harsh to threaten the existence of an accused charity. Virtually all charities are affected, although those that grant or provide aid or assistance outside the U.S. are most seriously affected.
K&L Gates’ Tax-Exempt Organizations/Nonprofit Institutions practice includes lawyers who devote the bulk of their professional time to the representation of charities, frequently advising regarding the unique tax, regulatory and other issues affecting charities. Included in their practice is counseling charities regarding compliance with the array of laws designed to combat terrorism. They assist their clients in developing grant making policies and strategies which are efficient, practical and cost-effective, so as to enable the charity to minimize its risk of funding terrorism without compromising the charity’s charitable mission or diverting excessive resources to administrative costs. For more information on this aspect of the practice, please visit the Tax-Exempt Organizations/Nonprofit Institutions practice description.
Immigration
The Act dramatically affects the immigration functions of the federal government. The Immigration and Naturalization Service ("INS") has been abolished and replaced by the Bureau of Border Security (primarily responsible for enforcement) and the Bureau of Citizenship and Immigration Services (responsible for adjudication of applications and naturalization). These two Bureaus are independent and will be minimally coordinated, likely resulting in increased delays in the processing of visas and shortages of workers in certain sectors of the economy. Consequently, traditional strategies in bringing foreign workers to the United States may have to be replaced with novel strategies in order to meet employers’ needs.
The Act also gives the DHS complete authority to administer laws and issue regulations relating to the granting and refusal of visas. This has far-reaching implications for visa applicants because--even though a United States Consulate may issue a visa—a DHS official can reverse any visa approval, and Consular officers will be required to record detailed information in a database about every applicant denied a visa. We forecast that visa applications will be subject to increased delays as a result of the Act.
K&L Gates’ immigration lawyers address and resolve issues concerning immigration benefits and visas for individuals and businesses. Our practitioners bring experience, creativity and knowledge to the practice of immigration law, especially in today's "immigration-adverse" environment. For more information on this aspect of our practice, please visit the Immigration practice description.
Corporate Compliance
Rapidly Rapidly evolving corporate governance standards, practices and procedures will be critical to enterprises that are confronted by homeland security and related developments. Novel issues will emerge for businesses that must comply with DHS regulations while satisfying generally applicable corporate governance standards. K&L Gates counsels publicly-traded corporations and their boards, independent directors, board committees and management on a wide range of corporate governance issues. Traditional client concerns surrounding corporate governance have recently been magnified by the Sarbanes-Oxley Act, the proposed corporate governance rules of the NYSE and NASDAQ, and other regulatory initiatives taken in response to the recent failure of a number of major U.S. corporations. Of particular interest here, we have provided detailed guidance to financial institutions on the implementation of special policies, procedures and controls to comply with the anti-money laundering provisions of the USA Patriot Act.
We also assist our clients by performing corporate governance reviews and designing policies and procedures to reduce risk and promote corporate governance compliance. We draw upon our extensive securities enforcement and white-collar criminal defense expertise to examine and investigate corporate misconduct and accounting irregularities. For example, our senior colleague, Dick Thornburgh, the former Attorney General of the United States, is currently serving as the Examiner of WorldCom. We understand the sensitivity and confidentiality associated with information gathering that is critical to the review of corporate governance matters. We anticipate that our substantial experience in this regard will be of paramount importance to companies focused on homeland security issues. For more information on this aspect of our practice, please visit the Corporate practice description.