Abstract
The US Department of Commerce relies more and more on the Federal Claims Act (FCA) to prosecute cybersecurity-related fraud against contractors, grantees and providers with a nexus to the United States. A new DOJ Cyber Fraud Initiative of lastOctober provides more guidance and contains broad whistleblower provisions. There are legal uncertainties and risks that come with this initiative.
Notes
General description of the FCA: https://www.justice.gov/civil/false-claims-act.
See 31 U.S.C. § 3730.
31 U.S.C. § 3729.
See DFARS 252.227-7012.
FAR 52.239‑1.
There are currently 16 critical infrastructure sectors in the US: the criterion is that their assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof. See https://www.cisa.gov/critical-infrastructure-sectors for a complete list.
For instance Universal Health Servs., Inc. v. United States, 136 S. Ct. 1989, 2001 (2016).
See US ex rel. Adams v. Dell Computer, NO. 15-cv-608 (D.DC. 2020).
Further reading
US False Claims Act (FCA) - 31 U.S. Code § 3729. https://www.law.cornell.edu/uscode/text/31/3729. Accessed: 7. Apr. 2022
US Federal Acquisition Regulations (FAR) FAC Number: 2022-04, 52.239‑1 Effective Date: 01/30/2022. https://www.acquisition.gov/far/52.239-1. Accessed: 7. Apr. 2022
Defense Acquisition Regulation Systems (DFARS) 252.227-7012. https://www.govinfo.gov/content/pkg/CFR-2010-title48-vol3/pdf/CFR-2010-title48-vol3-sec252-227-7012.pdf. Accessed: 7. Apr. 2022
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Spies, A. USA: Department of Justice’s new civil cyber-fraud initiative and its implications. Int. Cybersecur. Law Rev. 3, 139–145 (2022). https://doi.org/10.1365/s43439-022-00050-1
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DOI: https://doi.org/10.1365/s43439-022-00050-1