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Hastings Business Law Journal

Abstract

Despite the significant interplays between national security and corruption, discourse around the national security dimensions of the Foreign Corrupt Practices Act (FCPA) – the most prominent global anticorruption framework – has been limited. With the deepening of global economic dependencies and data flows in critical areas such as telecommunications and ICT, there is ample reason to suggest that the use of private sector entities by governments for national security (e.g., intelligence-gathering) purposes is only likely to become more common. Recent controversies around the activities of Crypto AG and Huawei only serve to support this trend.

Within this broad context, this paper focusses on two distinct but closely related issues concerning the FCPA. First, it focusses on the least-discussed provision of the framework, the national security exemption, and aims to add to the discourse around it by introducing new legislative and historical context regarding its origins and operationalization. Conversely, the second part of this paper focuses on a well-studied part of the FCPA, the antibribery provision, and aims to apply existing jurisprudence to the emerging issues in the national security domain. In doing so, it employs a case-study approach modeled on historical as well as recent examples of private sector cooperation for national security purposes. Together, both parts aim to add to the discourse and close the analytical ‘loop’ concerning the interplay between national security and the FCPA.

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