DOJ Becoming More Involved in CFIUS, Official Says

DOJ is helping to oversee more cases before the Committee on Foreign Investment in the U.S., particularly those involving sensitive U.S. personal data, said Matthew Olsen, the agency’s assistant attorney general for national security. He said DOJ is now “co-leading” with the Treasury Department about one-fourth of CFIUS reviews, “if not more,” a significant increase from previous years.

“I was struck when I came back a year and a half ago to see the growth in our work on CFIUS,” said Olsen, who rejoined DOJ in 2021 after helping to establish the agency’s National Security Division in 2006. Speaking during a law conference in Washington last week, Olsen said DOJ now has more than 40 lawyers, data analysts and others working on CFIUS compared with “one or two people” when he left the agency in 2009.

“It is a significant part of my week,” he said of CFIUS reviews, adding that DOJ is “increasingly part of the effort to impose mitigation agreements” and check companies’ compliance with those agreements. Although the agency is concerned about the general “flow of sensitive technology through these transactions,” it’s paying particular attention to deals that may provide foreign countries with sensitive U.S. data.

“We're really concerned about that,” Olsen said during the conference, hosted by Mayer Brown, the American Bar Association and American University. “Particularly protecting data and data about U.S. persons, personal data -- it’s a big part of our review.”

Adam Hickey, a former senior official in DOJ’s National Security Division before joining Mayer Brown as a trade lawyer last week, said the agency has “really devoted increasing resources to exactly this problem set specifically.”

“We've heard that CFIUS has been increasingly interested in data security and data privacy,” Hickey said during the conference. “A lot of that interest, I think, has been driven by the Justice Department.” He said he expects CFIUS to increase penalties for violations in this space.

Olsen said DOJ is looking to hire more lawyers to help with the agency’s work on CFIUS, particularly lawyers who have “a lot of transactional experience.” The agency needs more people who can “understand the intricacies of a very complex transaction that’s being proposed, or maybe that’s already occurred, and sort of understand the role that a foreign government might play,” he said. “That's a skill set that, again, we might not have focused on 15 years ago, but now it’s a premium for us.”