DOJ Atty Says Cybersecurity Plan Is a Call to Whistleblowers
The U.S. Department of Justice's recent announcement of a crackdown on cybersecurity-related fraud was designed to get more whistleblowers to come forward, as well as to get more contractors to self-report cybersecurity breaches, a senior DOJ attorney said Wednesday.
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Despite the initiative, however, it is likely to be tough for the DOJ and potential whistleblowers to find good cybersecurity-related False Claims Act cases to pursue, at least over the next few years, said Blank Rome LLP partner Jennifer Short, a former assistant U.S. attorney who represents government contractors and health care providers in matters involving government and internal investigations, including False Claims Act cases.
There is currently a "patchwork" of cybersecurity-related regulations across federal agencies, many of which are in flux, so proving a violation of the False Claims Act could be difficult on the government side, particularly given requirements such as providing scienter — intent, or knowledge of wrongdoing — and relevance of an alleged false claim, according to Short.
"Where's the actual statutory, regulatory or contractual violation that will give you that in, where you can relate the misconduct to a claim for payment by the government?" she said. "I think those are going to be harder cases in the near term, because the agencies are still struggling with 'what are our regulations, our contract provisions, what are the standards by which we are measuring people?"
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"DOJ Atty Says Cybersecurity Plan Is a Call to Whistleblowers," by Daniel Wilson was published in Law360 on February 23, 2022.