• About
  • Archive
  • Contact
  • Home 1
  • Submit a Story
  • Submit a Story
  • USCBC Podcasts
China Business Review
  • Operations
    Multinational Supply Chains in a Post-Pandemic China

    Multinational Supply Chains in a Post-Pandemic China

    Managing Risk in the “New Era”

    Managing Risk in the “New Era”

    Design Patents vs. Trade Dress: Protecting IP in China

    Design Patents vs. Trade Dress: Protecting IP in China

    As China Emerges from COVID-19, US Companies Invest to Compete

    As China Emerges from COVID-19, US Companies Invest to Compete

    Inside the Mad Rush for Masks – Anatomy of a 10 Million Mask Order

    Inside the Mad Rush for Masks – Anatomy of a 10 Million Mask Order

    Addressing Risk in the Era of US-China “Great Power” Competition

    Addressing Risk in the Era of US-China “Great Power” Competition

  • Politics
    Hong Kong’s National Security Law, Five Months In

    Hong Kong’s National Security Law, Five Months In

    China Implements its Long-Awaited Unreliable Entities List Mechanism

    China Implements its Long-Awaited Unreliable Entities List Mechanism

    Competing WTO Reform Agendas and the Contest for the Next Director-General

    Competing WTO Reform Agendas and the Contest for the Next Director-General

    China Eyes Further Northeast Asian Economic Integration in RCEP

    China Eyes Further Northeast Asian Economic Integration in RCEP

    COVID-19 Could Doom or Deliver US-China Commercial Relations

    COVID-19 Could Doom or Deliver US-China Commercial Relations

    A Game of Chicken

    A Game of Chicken

  • Tech
    Export Controls on Emerging and Foundational Technologies: A Null Set?

    Export Controls on Emerging and Foundational Technologies: A Null Set?

    How Companies Are Reacting to China’s New Data Security Scheme

    How Companies Are Reacting to China’s New Data Security Scheme

    China’s Participation in International Standards Setting: Benefits and Concerns for US Industry

    China’s Participation in International Standards Setting: Benefits and Concerns for US Industry

    The Hidden Challenges of China’s Booming Medical AI Market

    The Brave New Business Models Making Waves in China’s Ecommerce Market

    Defining “Emerging Technologies”: Industry Weighs In on Potential New Export Controls

    Defining “Emerging Technologies”: Industry Weighs In on Potential New Export Controls

    Trending Tags

    • Intellectual Property
    • innovation
    • cybersecurity
    • ecommerce
    • tech
  • Society
    COVID-19 Could Doom or Deliver US-China Commercial Relations

    COVID-19 Could Doom or Deliver US-China Commercial Relations

    The Year in Social Credit: Where is Corporate Social Credit Going in 2020 and Beyond?

    The Year in Social Credit: Where is Corporate Social Credit Going in 2020 and Beyond?

    Open Government Developments in China: Implications for US Businesses

    The Hidden Challenges of China’s Booming Medical AI Market

    The Handshake that Changed the World

    President Carter and Vice Premier Deng at the Performance of American Arts

    January 29, 1979 Performance of American Arts for Deng Xiaoping

  • Media

    Gallery: Craig Allen’s Trip to China

    USCBC 45th Annual Membership Meeting

    USCBC 45th Anniversary DC Open House

    USCBC President’s China Visit

    USCBC Hosts Business Roundtable with Zhejiang Party Secretary Che Jun

    USCBC hosts Comprehensive Economic Dialogue (CED) Luncheon

  • Podcasts
No Result
View All Result
  • Operations
    Multinational Supply Chains in a Post-Pandemic China

    Multinational Supply Chains in a Post-Pandemic China

    Managing Risk in the “New Era”

    Managing Risk in the “New Era”

    Design Patents vs. Trade Dress: Protecting IP in China

    Design Patents vs. Trade Dress: Protecting IP in China

    As China Emerges from COVID-19, US Companies Invest to Compete

    As China Emerges from COVID-19, US Companies Invest to Compete

    Inside the Mad Rush for Masks – Anatomy of a 10 Million Mask Order

    Inside the Mad Rush for Masks – Anatomy of a 10 Million Mask Order

    Addressing Risk in the Era of US-China “Great Power” Competition

    Addressing Risk in the Era of US-China “Great Power” Competition

  • Politics
    Hong Kong’s National Security Law, Five Months In

    Hong Kong’s National Security Law, Five Months In

    China Implements its Long-Awaited Unreliable Entities List Mechanism

    China Implements its Long-Awaited Unreliable Entities List Mechanism

    Competing WTO Reform Agendas and the Contest for the Next Director-General

    Competing WTO Reform Agendas and the Contest for the Next Director-General

    China Eyes Further Northeast Asian Economic Integration in RCEP

    China Eyes Further Northeast Asian Economic Integration in RCEP

    COVID-19 Could Doom or Deliver US-China Commercial Relations

    COVID-19 Could Doom or Deliver US-China Commercial Relations

    A Game of Chicken

    A Game of Chicken

  • Tech
    Export Controls on Emerging and Foundational Technologies: A Null Set?

    Export Controls on Emerging and Foundational Technologies: A Null Set?

    How Companies Are Reacting to China’s New Data Security Scheme

    How Companies Are Reacting to China’s New Data Security Scheme

    China’s Participation in International Standards Setting: Benefits and Concerns for US Industry

    China’s Participation in International Standards Setting: Benefits and Concerns for US Industry

    The Hidden Challenges of China’s Booming Medical AI Market

    The Brave New Business Models Making Waves in China’s Ecommerce Market

    Defining “Emerging Technologies”: Industry Weighs In on Potential New Export Controls

    Defining “Emerging Technologies”: Industry Weighs In on Potential New Export Controls

    Trending Tags

    • Intellectual Property
    • innovation
    • cybersecurity
    • ecommerce
    • tech
  • Society
    COVID-19 Could Doom or Deliver US-China Commercial Relations

    COVID-19 Could Doom or Deliver US-China Commercial Relations

    The Year in Social Credit: Where is Corporate Social Credit Going in 2020 and Beyond?

    The Year in Social Credit: Where is Corporate Social Credit Going in 2020 and Beyond?

    Open Government Developments in China: Implications for US Businesses

    The Hidden Challenges of China’s Booming Medical AI Market

    The Handshake that Changed the World

    President Carter and Vice Premier Deng at the Performance of American Arts

    January 29, 1979 Performance of American Arts for Deng Xiaoping

  • Media

    Gallery: Craig Allen’s Trip to China

    USCBC 45th Annual Membership Meeting

    USCBC 45th Anniversary DC Open House

    USCBC President’s China Visit

    USCBC Hosts Business Roundtable with Zhejiang Party Secretary Che Jun

    USCBC hosts Comprehensive Economic Dialogue (CED) Luncheon

  • Podcasts
No Result
View All Result
China Business Review
No Result
View All Result
Home Operations

US DOJ revises corporate policy to encourage controls around Wechat, WhatsApp

Baker McKenzie by Baker McKenzie
March 14, 2019

Shenzhen China - December 30 2013: Emergence of Chinese Social Media and the rise of WeChat from Tencent in competing with Facebook.

Share on FacebookShare on TwitterLinkedin

US Department of Justice revises FCPA Corporate Enforcement Policy to encourage adoption of guidance and controls around WeChat, WhatsApp and other messaging services

This article first appeared as a Baker McKenzie Client Alert.


Amendments to FCPA Corporate Enforcement Policy
On March 12, 2019, the US Department of Justice (DOJ) modified the FCPA Corporate Enforcement Policy (the “Policy”). This Policy credits corporations that voluntarily self-disclose, provide full cooperation, and demonstrate timely and appropriate remediation in FCPA matters with a presumption of declination absent aggravating factors. A key change is to now allow the use of “ephemeral messaging platforms”, such as WeChat and WhatsApp, for business communications as long as controls are put in place to ensure appropriate retention of business records. These “controls” however require careful consideration as we discuss below.

Obligations to control or retain WeChat and WhatsApp business communications
In November 2017, the DOJ adopted the Policy to provide corporations with further certainty around the benefits of cooperating with the DOJ and how to
obtain a declination. Many observed that the original language in the Policy indicated that to effectively remediate, business records could not be stored on messaging platforms because such platforms could not effectively retain business records. This was practically difficult as messaging apps are routinely used in the modern business context. The Policy amendments acknowledge the reality that business communications occur over these platforms – including as part of employees’ personal communications – and advise corporations to implement “appropriate guidance and controls” to ensure that the corporation retains these business records or communications as part of its document retention policies or legal obligations.

This development continues the trend seen in the People’s Republic of China issuing new rules to clarify procedures for collection of electronic data in criminal cases, which took effect in February 2019 – see Baker McKenzie’s alert.

In addition to the guidance on the adoption of policies and controls around business communications on messaging apps, the amended Policy reflects two additional clarifications:

1. In the M&A context, the Policy reflects the DOJ’s position that there will be a presumption of a declination where a company undertakes an M&A transaction where misconduct is uncovered through thorough and timely due diligence or post-acquisition compliance integration efforts; and

2. Further guidance on “de-confliction” when the DOJ may request a deferral of investigative steps by a company for a limited period of time.

Actions to take
With the proliferation of messaging apps and the migration of business records to these platforms, it is essential that companies reconsider their policies and controls around the use of these apps to comply with the Policy’s expectations. In addition, it is important for companies to have access to these business communications when seeking to conduct credible internal audits and investigations. Depending on the industry and the legal requirements, we recommend that companies:

  •  Control the use of messaging applications and restrict their use to devices that the company owns and/or can control and review. For high risk business functions (i.e. procurement, government touchpoints), we recommend issuing a company device and ensuring that company policies will enable access and review of business communications respectful of relevant employment and data privacy laws.
  • Review IT and data privacy policies and procedures that apply to the use of messaging apps. These include carefully crafting “Bring Your Own Device” policies to clearly allow access to business records, should the company wish to allow employees to use their own devices for business communications.
  • In certain limited circumstances, prohibit the use of messaging apps for business communications. Note that messaging apps may not provide sufficient privilege protection for attorney-client communications.

Written by Mini vandePol, Simon Hui, Vivian Wu, Henry Chen, Peter Andres, and Anna Lamut.

Baker McKenzie

Baker McKenzie

Next Post

Belt and Road in 2019: Recalibration or Retrenchment?

Recommended.

Multinational Supply Chains in a Post-Pandemic China

March 5, 2021

China’s New Complaint Measures for Foreign Companies: Substance or Style?

February 11, 2021

How Biden’s Economic Team Views China Trade Policy

January 14, 2021

Hong Kong’s National Security Law, Five Months In

November 25, 2020

Latest Podcasts.

What do you need to know about the “two sessions?”

March 2, 2021

Consumption data from a stay-at-home Lunar New Year

February 23, 2021

What we can learn from provincial “two sessions”

February 10, 2021

Some operational takeaways from Forecast 2021

February 5, 2021
China Business Review

China Business Review is the official magazine of the US-China Business Council, a nonprofit and nonpartisan trade association that represents more than 200 American companies doing business in China.

  • How to contribute to China Business Review

Categories

  • Bilateral Relations
  • Business Etiquette
  • CBR Spotlight
  • China Deals
  • Corruption
  • Cybersecurity
  • Ecommerce
  • Environment
  • Finance
  • Galleries
  • Getting Started
  • HR & Staffing
  • Infographics
  • Innovation
  • Intellectual Property
  • Management
  • Media
  • Operations
  • Opinion
  • Policy & Regulations
  • Politics
  • PR & Marketing
  • Rural Issues
  • Safety
  • Social Policy
  • Society
  • Standards + Licensing
  • Sustainability
  • Tax
  • Tech
  • Top Story
  • Trade
  • Uncategorized
  • US-China Business Council
  • Videos

Tags

Agreements Agriculture Alibaba Best Practices Business Environment China China's Investments Abroad China Market Intelligence Chinese Consumers Chinese Investment Commentary Consumer Trends E-Commerce Economic Trends Energy Environment Events Food Foreign Investment Going Global Healthcare Reform Human Resources Infrastructure Internet Interview Investment Investments into China IPO Joint Venture Labor Legal Analysis M&A Manufacturing Media National People's Congress Q&A Strategic and Economic Dialogue Supply Chains Technology Trade Transparency US-China Relations USCBC US Exports to China Xi Jinping

Join our Mailing List

Sign up for the US-China Business Council's newsletters to stay ahead of the game with roundups, analysis, and commentary.

Sign Up

Follow Us

  • About
  • USCBC
  • Submit a Story
  • Archive

© 2021 China Business Review

No Result
View All Result
  • Operations
  • Politics
  • Tech
  • Society
  • Media
  • Podcasts

© 2021 China Business Review