After graduating from Georgetown University’s School of Foreign Service, I had an offer in hand to work for the US State Department, but decided instead to go to law school. Many of my classmates chose to go into the US Foreign Service and I often wonder, more with curiosity than regret, where I would be if I had followed that path. With this background, I have followed the WikiLeaks publication of confidential diplomatic cables with more than a passing interest.
WikiLeak’s founder, Julian Assange, has a naïve teenager’s belief that discretion, circumspection, and confidentiality are the hallmarks of a corrupt adult world. As in most human endeavors, discretion breeds trust, which is an indispensable ingredient in diplomacy. Mr. Assange and his minions have hampered diplomatic capabilities and they should be ashamed of themselves.
I read that the Department of Justice has been considering ways to indict Assange, with most speculation centering on the Espionage Act of 1917, which prohibits the unauthorized possession and dissemination of information related to national defense.
If WikiLeaks should expand its exposés to information stolen from private enterprises, I would suggest that a prosecution under the Economic Espionage Act of 1996 (“EEA”) might be possible.
Sections 1831(a) and 1832(a) of the EEA punish any individual who:
(1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice or deception obtains a trade secret;
(2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails, communicates, or conveys a trade secret;
(3) receives, buys, or possesses a trade secret, knowing the same to have been stolen or appropriated, obtained, or converted without authorization ….
Sections 1831 and 1832 differ in the parties to which they apply. Section 1831 punishes all of the acts listed above when knowingly undertaken by anyone “intending or knowing that the offense will benefit any foreign government, foreign instrumentality, or foreign agent.” Foreign companies or individuals do not fall within the scope of section 1831 unless they are “substantially owned, controlled, sponsored, commanded, managed or dominated by a foreign government.” This Section probably would not apply to the WikiLeaks case.
Section 1832, however, is a general criminal trade secrets statute. Despite its inclusion in the Economic Espionage Act, there is no requirement of foreign espionage in this provision. Rather, it applies to anyone who knowingly engages in any act of misappropriation “with intent to convert a trade secret, that is related to or included in a product that is produced for or placed in interstate or foreign commerce, to the economic benefit of anyone other than the owner thereof, and intending or knowing that the offense will, injure any owner of that trade secret.”
While Assange is not a US citizen, Section 1837 governs the applicability of the EEA to conduct which occurs, in whole or in part, outside the United States. The territorial reach of the statute is extremely broad. It applies not only to acts conducted entirely within the United States, but also to foreign schemes, provided any “act in furtherance of the offense was committed in the United States.”
Violations under both sections of the EEA are felonies. Section 1832 provides for a term of up to ten years in prison and fines for individuals, and fines of up to $5 million for corporations or other organizations that violate its provisions.
I would imagine that the Department of Justice is exploring using the EEA as a method to bring Assange to justice.
The irony of the whole WikiLeaks matter is that the leaked diplomatic cables, rather than unearthing shocking revelations of conspiracy, demonstrate that the US State Department is composed of hard-working, earnest, thoughtful, capable and dedicated citizens. Perhaps these professionals, toiling in relative obscurity to advance American interests abroad, are the ones who should be on the short list for Person of the Year, rather than the voyeuristic and puerile Mr. Assange.
Happy New Year and Best Wishes to All for a Happy, Healthy and Prosperous 2011 !
Monday, December 27, 2010
Monday, December 20, 2010
Making a List, Checking it Twice
This time of year is about lists: Lists of New Year’s resolutions, Santa’s list of naughty and nice kids, Christmas card lists, top ten lists of the year just finishing, etc. For a great book on the simple, yet powerful, concept of list-making, read Atul Gawande’s The Checklist Manifesto. A surgeon by trade, Gawande shows the power of checklists in the medical world, but his manifesto goes beyond merely extolling a common learning tool. To Gawande, a checklist is the quintessential embodiment of captured and communicated knowledge and is the perfect “swiss army knife” to use on our increasing complex world.
Checklists can overcome the strange cognitive deficiencies that we humans are subject to. For example, Gawande cites the fact that surgical errors drop dramatically when the operating team knows each other by name, so pre-operation introductions became part of his checklist.
Much of the resistance to checklists comes from experts thinking they don’t need to rely on such crutches- I have seen that complaint from lawyers- but in my experience checklists liberate the professional to focus on the cutting edge of their practice- the unknown frontier where human intuition operates at its best. For the thousand routine, yet highly critical and complex tasks, it’s best to automate those factors, and a checklist is a great place to start. I intend to develop many new checklists for my practice next year.
In the meantime, put The Checklist Manifesto on your 2011 reading list.
Best wishes for a very Happy Holiday Season to all !
Checklists can overcome the strange cognitive deficiencies that we humans are subject to. For example, Gawande cites the fact that surgical errors drop dramatically when the operating team knows each other by name, so pre-operation introductions became part of his checklist.
Much of the resistance to checklists comes from experts thinking they don’t need to rely on such crutches- I have seen that complaint from lawyers- but in my experience checklists liberate the professional to focus on the cutting edge of their practice- the unknown frontier where human intuition operates at its best. For the thousand routine, yet highly critical and complex tasks, it’s best to automate those factors, and a checklist is a great place to start. I intend to develop many new checklists for my practice next year.
In the meantime, put The Checklist Manifesto on your 2011 reading list.
Best wishes for a very Happy Holiday Season to all !
Risky Business
After living through the economic conditions of the last two years and after reading Nassim Nicholas Taleb’s The Black Swan, one would not be blamed for throwing up one’s hands and conceding that humans are not very good at measuring, assessing and protecting against risk.
Surviving and Thriving In Uncertainty: Creating the Risk Intelligent Enterprise by Frederick Funston and Stephen Wagner strikes back against such despair and provides a useful analytical framework for assessing risk.
The authors boil risk assessment failures to ten factors, many of which are caused in large part by common human cognitive flaws such as, failing to challenge assumptions, expecting the future to look like today, failure to remain vigilant, ignoring interdependencies, underestimating rates of change, taking facts for granted, not providing a safety margin, organizational sloppiness, and short-term thinking. Admittedly, many of the “risk intelligence” skills offered by the author are largely common sense, but this serves to underscore the difficulty of institutionalizing common sense in an enterprise.
The authors also score points for highlighting a failure to take risks as a risk in itself. Intelligent risk management not only preserves current assets, but also expands the opportunity for future income streams.
For a more historical perspective on risk, I recommend Against the Gods: The Remarkable Story of Risk by Peter Bernstein. This engrossing work reviews the creation and development of risk management (i.e. the idea that future events can be understood, measured and predicted) by surveying the history of probability theory, statistical sampling methods, business forecasting, game theory, insurance and derivatives, and chaos theory.
Against the Gods, The Black Swan and Surviving and Thriving in Uncertainty make for a recommended trilogy for any in-house counsel looking to provide some rigor around risk assessments.
The butterfly effect is a concept from chaos theory that holds that small factors may create huge variations in a system; the idea being that a butterfly flapping its wings in one part of the world could conceivable lead to a hurricane in another part of the world. Applying that metaphor to risk assessment, I wish that you may always capture your risks when they are still butterflies.
Surviving and Thriving In Uncertainty: Creating the Risk Intelligent Enterprise by Frederick Funston and Stephen Wagner strikes back against such despair and provides a useful analytical framework for assessing risk.
The authors boil risk assessment failures to ten factors, many of which are caused in large part by common human cognitive flaws such as, failing to challenge assumptions, expecting the future to look like today, failure to remain vigilant, ignoring interdependencies, underestimating rates of change, taking facts for granted, not providing a safety margin, organizational sloppiness, and short-term thinking. Admittedly, many of the “risk intelligence” skills offered by the author are largely common sense, but this serves to underscore the difficulty of institutionalizing common sense in an enterprise.
The authors also score points for highlighting a failure to take risks as a risk in itself. Intelligent risk management not only preserves current assets, but also expands the opportunity for future income streams.
For a more historical perspective on risk, I recommend Against the Gods: The Remarkable Story of Risk by Peter Bernstein. This engrossing work reviews the creation and development of risk management (i.e. the idea that future events can be understood, measured and predicted) by surveying the history of probability theory, statistical sampling methods, business forecasting, game theory, insurance and derivatives, and chaos theory.
Against the Gods, The Black Swan and Surviving and Thriving in Uncertainty make for a recommended trilogy for any in-house counsel looking to provide some rigor around risk assessments.
The butterfly effect is a concept from chaos theory that holds that small factors may create huge variations in a system; the idea being that a butterfly flapping its wings in one part of the world could conceivable lead to a hurricane in another part of the world. Applying that metaphor to risk assessment, I wish that you may always capture your risks when they are still butterflies.
Monday, December 6, 2010
Here's to the Hall
Being an in-house attorney, understanding finance, accounting and general business theory is an indispensable skill, so after practicing law for seven years, I decided to get my MBA. I view my law degree and business degree as wings of an airplane- both are needed for flight. I went to the Stillman School of Business at Seton Hall University at night, starting in the fall of 1995 and completing my classes in December 2000. At the May 2001 Stillman School of Business graduation ceremony, I was fortunate to be able to give a commencement speech to my classmates. In honor of the ten year mark of completing the degree, I thought I'd reintroduce the text of my speech in this blog.
I. Introduction
Congratulations.
Congratulations to each and every one of you who have worked tenaciously to receive the degree that you are receiving here today.
One of the unexpected joys of writing this speech was that it forced me to assess my feelings about Seton Hall and my five years here. It’s really impossible for me to distill my time at Seton Hall down to a few minutes presentation, much less to presume to speak for the varied range of experiences that each of us has lived through while earning a graduate degree. Some of us studied management, others finance, still others toiled for advanced degrees in taxation, accounting, or even joint degrees. Some of us came to campus at night after work, others dedicated themselves to school full-time, some of us came after being in the working world, some straight from college. Each of us carries our own memories and moments and this event has unique significance for each of us individually. Even so, despite these disparate backgrounds, perhaps we do share some common perspectives about graduate school.
II. Our Common Bond
Perseverance
One likely shared feeling is the satisfaction that comes from perseverance and promises kept to ones self. We live in constantly accelerating times, but I believe that there still must be a constancy of core values, an anchor that allows us to be true to our higher instincts and not be blown off course. Each of you knows what I mean by this because you have demonstrated, through your actions, a dedication to the core value of education.
Empowerment
Another feeling we should all share is one of empowerment. Speaking for myself, not a day goes by that I am not able to perform my job better, to analyze a problem better, and to create solutions to work issues more adeptly due to the disciplines and skills that I picked up in my classes at Seton Hall. Each of you now also possesses this powerful and unalienable tool kit to improve both your individual life and our wider society. The diploma that we receive is merely a physical manifestation of that tool kit, but what you have really earned is inside of you, and that learning gives you immense power in your chosen field.
Education prepares students to join the timeless dialogue of the world’s great minds. Armed with your knowledge and your diploma, you are now ready to enter into that dialogue in your chosen field and to embrace it with the passion that motivated you to seek this degree in the first place.
For me, I have always been interested in business as a profession. Although many view the professions of business as mercenary arts, business, in fact, is a true profession and perhaps even a calling. Business is an amalgamation of an astounding scope of disciplines- marketing, psychology, law, management, human relations, economics, finance and others. Business intrigues me – at root it is the study in the practical aspects of how humans live their everyday lives, how they buy what they buy, why they work as they work, why they organize as they do.
Business has a fundamental effect on peoples’ lives and standard of living. Business, because it transcends national boundaries, has the ability to create and topple empires, and decisions made by business managers can sustain economies or break them. Just as the power of business over our lives is immense, so is the responsibility of those who take the mantle of business leadership to be capable stewards who respond to the better angels of our nature.
Be it the business world or another profession, your knowledge gives you power to change the world (or at least your corner of it) for the better and I challenge each of you to accept that undertaking.
Enthusiasm
At this ceremony, I am certain that we also share a certain excitement or enthusiasm toward the future. Seton Hall has given me a renewed enthusiasm for my profession. The word “enthusiasm” has its origins in the Greek word theos and means to be filled with God. This enthusiasm, or being filled with God, creates the passion and confidence that makes all the difference between success and failure. Churchill once said that the greatest blessing was to have a career that one enjoyed so much that every work day was like a vacation and every day off like an enforced absence from a loved one. Now that’s enthusiasm! May you all find such happiness in your career.
Gratitude
One last emotion I am sure that we all share is gratitude. Without the dedicated professors, staff, and administration, Seton Hall would be nothing more than an empty collection of lecture halls and dorms. The professors who routinely stay after hours to accommodate students, who challenge us to think, who inspire us- On behalf of all here today I offer a thank you to the Seton Hall faculty and staff.
I also thank my fellow classmates for their contributions to class discussions, joint projects and general friendship. An important part of life is about collaboration and building bridges of respect and I thank you for that opportunity.
I also give a special thanks to the families, spouses, parents, children, significant others, friends, work colleagues and employers, whose loyal support was unwavering, profound and sublimely patient. It would have been impossible to complete this endeavor without you.
III. Conclusion
It amazes me how a journey that seemed so daunting at the outset can in retrospect seem to have passed by so fast. But this phase of the journey is now complete.
It is a true honor for me to have the opportunity to address this class. Congratulations again to you all.
I. Introduction
Congratulations.
Congratulations to each and every one of you who have worked tenaciously to receive the degree that you are receiving here today.
One of the unexpected joys of writing this speech was that it forced me to assess my feelings about Seton Hall and my five years here. It’s really impossible for me to distill my time at Seton Hall down to a few minutes presentation, much less to presume to speak for the varied range of experiences that each of us has lived through while earning a graduate degree. Some of us studied management, others finance, still others toiled for advanced degrees in taxation, accounting, or even joint degrees. Some of us came to campus at night after work, others dedicated themselves to school full-time, some of us came after being in the working world, some straight from college. Each of us carries our own memories and moments and this event has unique significance for each of us individually. Even so, despite these disparate backgrounds, perhaps we do share some common perspectives about graduate school.
II. Our Common Bond
Perseverance
One likely shared feeling is the satisfaction that comes from perseverance and promises kept to ones self. We live in constantly accelerating times, but I believe that there still must be a constancy of core values, an anchor that allows us to be true to our higher instincts and not be blown off course. Each of you knows what I mean by this because you have demonstrated, through your actions, a dedication to the core value of education.
Empowerment
Another feeling we should all share is one of empowerment. Speaking for myself, not a day goes by that I am not able to perform my job better, to analyze a problem better, and to create solutions to work issues more adeptly due to the disciplines and skills that I picked up in my classes at Seton Hall. Each of you now also possesses this powerful and unalienable tool kit to improve both your individual life and our wider society. The diploma that we receive is merely a physical manifestation of that tool kit, but what you have really earned is inside of you, and that learning gives you immense power in your chosen field.
Education prepares students to join the timeless dialogue of the world’s great minds. Armed with your knowledge and your diploma, you are now ready to enter into that dialogue in your chosen field and to embrace it with the passion that motivated you to seek this degree in the first place.
For me, I have always been interested in business as a profession. Although many view the professions of business as mercenary arts, business, in fact, is a true profession and perhaps even a calling. Business is an amalgamation of an astounding scope of disciplines- marketing, psychology, law, management, human relations, economics, finance and others. Business intrigues me – at root it is the study in the practical aspects of how humans live their everyday lives, how they buy what they buy, why they work as they work, why they organize as they do.
Business has a fundamental effect on peoples’ lives and standard of living. Business, because it transcends national boundaries, has the ability to create and topple empires, and decisions made by business managers can sustain economies or break them. Just as the power of business over our lives is immense, so is the responsibility of those who take the mantle of business leadership to be capable stewards who respond to the better angels of our nature.
Be it the business world or another profession, your knowledge gives you power to change the world (or at least your corner of it) for the better and I challenge each of you to accept that undertaking.
Enthusiasm
At this ceremony, I am certain that we also share a certain excitement or enthusiasm toward the future. Seton Hall has given me a renewed enthusiasm for my profession. The word “enthusiasm” has its origins in the Greek word theos and means to be filled with God. This enthusiasm, or being filled with God, creates the passion and confidence that makes all the difference between success and failure. Churchill once said that the greatest blessing was to have a career that one enjoyed so much that every work day was like a vacation and every day off like an enforced absence from a loved one. Now that’s enthusiasm! May you all find such happiness in your career.
Gratitude
One last emotion I am sure that we all share is gratitude. Without the dedicated professors, staff, and administration, Seton Hall would be nothing more than an empty collection of lecture halls and dorms. The professors who routinely stay after hours to accommodate students, who challenge us to think, who inspire us- On behalf of all here today I offer a thank you to the Seton Hall faculty and staff.
I also thank my fellow classmates for their contributions to class discussions, joint projects and general friendship. An important part of life is about collaboration and building bridges of respect and I thank you for that opportunity.
I also give a special thanks to the families, spouses, parents, children, significant others, friends, work colleagues and employers, whose loyal support was unwavering, profound and sublimely patient. It would have been impossible to complete this endeavor without you.
III. Conclusion
It amazes me how a journey that seemed so daunting at the outset can in retrospect seem to have passed by so fast. But this phase of the journey is now complete.
It is a true honor for me to have the opportunity to address this class. Congratulations again to you all.
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