National Security Law

Cybersecurity: Private Sector Faces Increasing Regulatory Risk From Agency Enforcement and Informal “Guidance” Becoming Standard of Care

Litigation Practice Group Teleforum Thursday, October 15, 03:00 PMFederalist Society Teleforum Conference Call

After Target, Anthem, Sony and Ashley Madison, cybersecurity is at the top of every company and regulator’s list of worries. As Congress considers legislation, the Executive Branch has been implementing a Presidential Executive Order to develop a “voluntary” framework for cybersecurity. The private sector faces a rapidly shifting terrain without clear standards. Agencies are flexing their regulatory muscles to expand oversight through informal guidance and threat of enforcement, as embodied in a recent victory by the FTC in the Wyndham case.

This Teleforum will provide an overview of the cybersecurity trends facing the private sector, and will discuss the implications for predictability, transparency, and innovation. Will the President’s Executive Order, and the NIST Cybersecurity Framework, become the de facto standard for the private sector? Is the federal government regulating through the threat of enforcement by FTC, FCC and other federal agencies, instead of through more regular administrative processes? What should companies make of emerging agency “guidance” from agencies like the FDA, SEC, NHTSA, and DoD, on operations and innovation in areas like the Internet of Things, mobile applications and devices, cloud services, connected cars?

Join us for a lively discussion about these trends and what the private sector faces in 2015 and 2016.


  • Megan Brown, Partner, Wiley Rein LLP
  • Brent McIntosh, Partner, Sullivan & Cromwell LLP
  • Rebecca Seidel, General Counsel, Senate Commerce, Science and Transportation Committee

The War on Terror - Event Audio/Video

2015 Texas Chapters Conference
Margaret Spellings, Michael Chertoff, William J. Haynes, Michael B. Mukasey, Larry D. Thompson, John Rizzo October 02, 2015

On September 19, 2015, The Federalist Society hosted the 2015 Texas Chapters Conference at the George W. Bush Presidential Center in Dallas, Texas. President of the George W. Bush Presidential Center and former United States Secretary of Education Margaret Spellings welcomed the attendees at the start of the conference. The following panel featured a retrospective on the War on Terror and the Rule of Law.


  • Hon. Margaret Spellings, President, George W. Bush Presidential Center and former United States Secretary of Education

Panel: The War on Terror

  • Hon. Michael Chertoff, former Secretary, Department of Homeland Security
  • Hon. William Haynes, II, former General Counsel, Department of Defense
  • Hon. Michael Mukasey, former Attorney General, Department of Justice
  • Hon. Larry D. Thompson, former Deputy Attorney General, Department of Justice
  • Moderator:  Mr. John Rizzo, former Acting General Counsel, Central Intelligence Agency

September 19, 2015
Dallas, TX

"Going Dark" and the Intersection of Law Enforcement and Privacy Interests - Podcast

Criminal Law & Procedure Practice Group Podcast
Peter Swire, Benjamin Wittes September 30, 2015

FBI Director James Comey recently testified before Congress about what he characterized as law enforcement's increasing lack of technical ability to carry out court orders to intercept and access communications and information because of a fundamental shift in communications services and technologies. This issue has been coined the “going dark" problem. According to Comey, changes in technology such as encryption hinder law enforcement’s ability to use investigative tools and follow critical leads to stop terrorists and cyber criminals.

Is "going dark" a real problem, or are Director Comey's concerns overblown? Do the means exist to develop techniques and tools, designed to mitigate the challenges associated with "going dark," while maintaining the privacy-protecting attributes of the technologies at issue?


  • Prof. Peter Swire, Nancy J. and Lawrence P. Huang Professor of Law and Ethics, Scheller College of Business, Georgia Institute of Technology and Senior Counsel, Alston & Bird LLP
  • Mr. Benjamin Wittes, Senior Fellow, Governance Studies, The Brookings Institution

Public Service and Private Servers: The Law of Government Information Retention and Security - Podcast

International & National Security Law Practice Group Podcast
Shannen W. Coffin, Nathan A. Sales, Adam R. Pearlman September 15, 2015

There has been much in the news recently relating to public officials’ transmission and retention of public records, and the classification and security practices related to the information contained therein. Prime examples include the conviction of former CIA Director David Petraeus for mishandling classified information that he kept in his home in violation of security protocols, and the many issues related to the revelation that former Secretary of State Hillary Clinton, during her tenure in office, used a private email address hosted by a server located in her home to conduct official business, some of which may have been classified.

In this Teleforum, Professor Nathan Sales, a law professor and a veteran of the Departments of Justice and Homeland Security, and Shannen Coffin, former Deputy Assistant Attorney General for the Justice Department’s Civil Division and later Counsel to Vice President Cheney, will discuss several of the national security, criminal, and regulatory dimensions related to the handling of sensitive government information. What laws and regulations define government officials’ responsibilities concerning the classification, transmittal, and retention of government information? Are government employees allowed to use private servers or commercial email services to conduct official business and transmit government documents? Are government servers in fact the most secure way of communicating sensitive information, or do rules that confine certain communications to official channels serve chiefly as recordkeeping purpose? Are classification markings on documents mere bureaucratic measures, or does their presence or absence on a document containing national security information have legal significance? Does an official who is an Original Classification Authority have legal duties different than other government employees to safeguard sensitive information?

Please join us for this Teleforum breaking down these issues and more, as they relate to the national security, counterintelligence, law enforcement, and administrative functions of the government.


  • Mr. Shannen W. Coffin, former Deputy Assistant Attorney General, Justice Department's Civil Division
  • Prof. Nathan A. Sales, Associate Professor of Law, Syracuse University College of Law
  • Moderator: Mr. Adam R. Pearlman, Special Advisor, International & National Security Law Practice Group 

Congress as "Iran Deal" Enforcer? - Podcast

International & National Security Law Practice Group Podcast
Alan M. Dershowitz, Dennis Ross, Jamil N. Jaffer September 04, 2015

With final congressional review action on the Iran Deal just days away, is Congress empowered to act in a fully informed manner with the vital information pertinent to all side agreements? Is the IAEA predictably a trustworthy actor? What tools might the people’s branch of government utilize to provide oversight and enforcement capability if Iran is in violation? Prof. Alan Dershowitz and Ambassador Dennis Ross approached these questions from different perspectives drawn from deep historical and geopolitical experience. Prof. Dershowitz is author of a book entitled The Case Against the Iran Deal: How Can We Now Stop Iran from Getting Nukes? and Ambassador Ross most recently wrote "How to Put Some Teeth into The Nuclear Deal with Iran" with David Patraeus. 


  • Professor Alan Dershowtiz, Felix Frankfurter Professor of Law, Harvard Law School
  • Ambassador Dennis Ross, William Davidson Distinguished Fellow and Counselor, The Washington Institute
  • Moderator: Jamil Jaffer, Former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee