Will News Corp face a Foreign Corrupt Practices prosecution? | Michael Wolff | Comment is free | guardian.co.uk
Still. When you use a law that, more by happenstance than design, has snagged your political opponents, you better have it be slam dunk. Thats the fix the Obama Justice Department and SEC is in: they can, on a technical basis, proceed against News Corporation and, of course, the administrations nemesis, Fox News; and, no doubt, they would like to. And they have cautiously opened up a formal investigation to do just that; but, in a lawyerly fashion, they also question whether they are proceeding for the right reason. Democrats tend, arguably more than Republicans, to not want to be seen doing things for selfish political reasons.They understand, too, that the blowback from proceeding, not least in an election year, with a novel use of the law, could undermine the law itself, which this administration has used more forcefully than most. This includes going after the construction behemoth, Kellogg Brown & Root for bribing officials in Nigeria, Morgan Stanleys real estate arm in China for the actions of one of its officials there, ITTs Chinese subsidiary, Nanjing Goulds Pumps Ltd, and Avon for payments to officials in China, Brazil, Mexico, Argentina, India and Japan.Still. If the FCPA was, a generation ago, conceived as a way to level the playing field when it comes to the way US companies secure markets and move goods abroad, perhaps the subtleties change in an age when information is as important an advantage as a favorable contract – when information itself is the goods.There is, of course, a further wrinkle when the issue becomes distinguishing between information that, no matter how it is obtained, serves the public good, and information that is wholly a commercial commodity. Its more complicated still when the business at issue is a newspaper that can claim, ingenuously or not, that information can be both – that what is commercial to one man, may be the flower of freedom to another.Enter Deputy Assistant Commissioner Akers. Her testimony on Monday to the Leveson inquiry in the UK on the behavior of the press offered a dramatic picture of something that seems significantly grander than the quid pro quo of reporters and their police cronies. Murdochs papers, it would seem, are not just buying information but buying a relationship – broadly, paying a sector of government for the ongoing favorable treatment of their business not to mention a horse for one of its editors!. The sheer amount of money involved suggests News International has obtained a larger competitive advantage than could be got merely by salacious gossip.Access to information is a business currency; if that access is unfairly obtained by a foreign division of a US company, than the FCPA would surely seem to apply. Indeed, if a marketing organization were to bribe a government official for access to, say, personal financial data, which it might then sell or use to competitive advantage, this would seem ripe for FCPA prosecution.