I spoke last Thursday with Adam S. Lee, the Special Agent in charge of the U.S. Federal Bureau of Investigation’s Richmond Division.
It was reported last month that Special Agent Lee was being considered to succeed James Comey as Director of the FBI.
Lee said he was both humbled and honored by this development.
“It was a rigorous process,” he said. “The interviews with the Attorney General and the President were lengthy and deeply substantive. The process resulted in an outstanding candidate heading toward nomination. The FBI will be in good shape with Mr. Wray.”
I asked Special Agent Lee about the heavy emphasis the Yates Memo and FCPA Pilot Program place on corporate compliance and the identification of individual wrongdoers.
Could it be confusing to firms to truly understand the level and adequacy of cooperation expected to receive cooperation credit?
He said the Justice Department expects businesses to turn over relevant information they have and do so in a reasonable and ongoing way.
“The FBI and, in my experience, the DOJ, don’t want to hinder a company’s legitimate commercial activities; we also don’t want to create any disincentives for whistleblowers,” he said.
If there’s a perception the FBI and DOJ are hunting for heads in their enforcement actions, it’s not true, Special Agent Lee said. And the government is not expecting to learn the company’s trade secrets, undermine its market position, etc., he said.
“Attorney General Sessions’ recent memo on charging appropriate statutes and seeking appropriate sentences in criminal cases returns a proper balance to our system of laws and largely places sentencing decisions with the judicial authorities where they belong,” Special Agent Lee said.
What the FBI asks of businesses is to help the government in FCPA and other investigations involving their insider threats — making the process smoother and shorter.
I asked Special Agent Lee about the FBI’s request of Apple to help break into Rizwan Farook’s (the San Bernadino shooter’s) iPhone without tripping the phone’s 10-guess passcode limit.
Apple pushed back, claiming that giving the FBI this assistance could jeopardize promises made to customers, and that those details could end up in the hands of hackers.
“This is one of many times in which we grapple as a law enforcement community and nation with our American principles of privacy and Constitutional liberties, each one of them a check against government surveillance. Those liberties are incredibly important,” Special Agent Lee said.
“But so too is our need to preserve and even enhance domestic security,” he said. “Or, in some particularly awful situations, help prevent child abuse and even abductions which are enabled by end-to-end encryption and encrypted forums. This stuff gets serious. And there is a black market for this type of information. We need access to be effective at keeping the American people safe — but always through legitimate judicial processes, of course.”
After obtaining judicial consent based on the overarching concerns for the safety and security of citizens, the FBI expects not only to get the time-honored access to a suspect’s home (arguably their most private realm of all), “but, yes, to their cell phone too,” he said.
I then asked Lee if the FBI was still using investigative techniques like electronic surveillance and undercover agents, as some have questioned whether the FBI and DOJ have dialed things back a bit after the Africa Sting case.
“That’s a fair question, but, no. We use all of the techniques available to us, trying the least intrusive ones to get the results we need first. We need probable cause, of course, and need to balance constitutional protections, but we are not holding back any of our resources or technical tools.”
He noted that success rates can depend on many things, including the judicial district and how aggressive the United States Attorney’s Office is in that district and their approach, and he said the Bureau certainly tries to learn from its prior experiences.
There are three international corruption squads operating out of New York, Washington, D.C. and Los Angeles. They’re dedicated to FCPA and kleptocracy investigations and enforcements.
Those squads are getting continuous field-office intelligence, as well as assistance from other FBI components like the cyber investigations, corporate fraud, and white-collar crime units, Lee said.
Julie DiMauro is a regulatory compliance expert whose analysis appears on Thomson Reuters’ Regulatory Intelligence subscription service designed for compliance and risk professionals in financial services. Follow her on Twitter @Julie_DiMauro and email her here.