How the COVID-19 Crisis has Transformed into a National Security Matter

The novel coronavirus (COVID-19) pandemic presents unprecedented challenges for governments and businesses around the world. In the U.S., the pandemic has shed light on some fundamental national security concerns in the public and private sectors.

In the wake of the 9/11 terror attacks, protecting the nation’s security meant one thing: Ensuring that an attack on U.S. soil would never happen again. While the fight against terrorism remains a persistent national security issue, a lot has changed in the past nearly 20 years. The novel coronavirus (COVID-19) pandemic has raised unprecedented concerns, but the reality is that the threats to national security related to the pandemic have been gradually developing for decades.

What does it mean to protect “national security”? Traditionally, protecting national security has been a matter of counterintelligence and military action—fighting against foreign entities that presented mortal risks to U.S. citizens at home and abroad. Today, however, while this remains one aspect of national security, the internet and the global economy have transformed what it means for the government, private companies, and academic institutions to protect the American way of life.

National Security and the COVID-19 Crisis

The COVID-19 crisis has quickly shed light on several different types of national security concerns. From the United States’ heavy reliance on China for medications and other critical supplies to the threats presented by the novel coronavirus itself, issues that have been previously identified but largely ignored are now suddenly in sharp focus. For the most part, U.S. businesses, academic institutions, and individual citizens have been relatively secure in the post-9/11 era. While this has allowed us to live in comfort and afforded many the opportunity to prosper, the present circumstances show that it has also lulled us into a false sense of security.

Let’s start at the beginning. The Chinese government officially confirmed the first cases of novel coronavirus infections in the Wuhan province on December 31, 2019. By March 31, 2020, there were more than 185,000 confirmed cases in the United States – the most of any country – and more than 3,800 Americans had died from COVID-19 and related complications. While infections are expected to peak in the majority of states by the end of April, the countdown to a vaccine and treatment is still being measured in months (with most experts saying that even a 12 to 18-month timeframe is optimistic for a vaccine), and health experts do not yet know what will happen when stay-at-home orders and social distancing guidelines are lifted.

So, how does national security come into play?

The U.S. Department of Homeland Security (DHS) and various other federal agencies are treating the COVID-19 crisis as a national security matter. For example, in its weekly update, DHS Response to COVID-19, the DHS outlines the latest efforts undertaken by the Federal Emergency Management Agency (FEMA), Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), Transportation Security Administration (TSA), Cybersecurity and Infrastructure Security Agency (CISA), United States Coast Guard (USCG), U.S. Citizenship and Immigration Services (USCIS), Countering Weapons of Mass Destruction (CWMD), and National Biodefense Analysis and Countermeasures Center (NBACC) in response to the novel coronavirus pandemic—all with a focus on the national security implications of the outbreak.

The U.S. Department of Justice (DOJ) is actively addressing the COVID-19 crisis as a national security issue as well. In particular, the DOJ is focusing on national security threats coming from China—not just in terms of the virus itself, but also in terms of access to medications and supplies, malign influence at the World Health Organization (WHO) and other entities, and economic espionage and intellectual property theft targeting U.S. businesses and universities.

Then, there are the risks that we don’t know. What is the situation in North Korea? Syria? Iran? While we know what is happening in most countries around the world, the information that can be gleaned from these countries is limited. An ineffective response in any one of these countries could potentially trigger another outbreak just as the United States is beginning to restart its economy and before a vaccine and treatment are ready.

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What Do the National Security Implications of COVID-19 Mean for Companies and Academic Institutions in the United States?

With these types of concerns in mind, what do the national security implications of the novel coronavirus outbreak mean for companies and academic institutions in the United States?

While paranoia and unwarranted skepticism certainly are not the answers, U.S. businesses and universities do need to be concerned about national security risks in various respects. Public and private companies and institutions must take appropriate measures to avoid facilitating threats to national security, and they must be prepared to respond quickly and effectively to any inquiries from the DHS, DOJ, or other federal authorities. In particular, the measures that businesses and universities may need to take in response to the COVID-19 crisis include:

• Enhanced Employee Screening and Monitoring – Companies and academic institutions must carefully screen job candidates with national security concerns in mind. Foreign nations, including China in particular, are seeking to gain access to U.S. businesses’ and universities’ innovations by placing individuals in various job positions. Businesses and universities must also appropriately monitor their personnel in an effort to identify individuals who may be working for foreign entities or supplying foreign entities with confidential or proprietary information.
• Enhanced Focus on Import/Export Compliance – When importing technology or other assets from overseas, companies and academic institutions must adhere to strict controls and ensure full compliance with the nation’s import control laws. When exporting technology and other assets, businesses and universities must maintain compliance as well. This includes taking appropriate measures to prevent re-exporting to blocked nations and entities.
• Critical Assessment of Contracts and Opportunities Involving Foreign Entities – Under the present circumstances, contracts and new business opportunities with various foreign nations and overseas entities must be viewed through the national security lens. In addition to assessing any immediate national security concerns, companies and academic institutions must consider whether relationships present the potential for counterparties to take control of a critical technology or health assets in the future.
• Critical Assessment of Foreign Investment Inquiries – Similar concerns exist for foreign investments in U.S. companies and research initiatives. While a capital infusion may be enticing, it could also represent an effort to exert malign influence for the benefit of a foreign nation and to the detriment of the United States.
• Enhanced Cybersecurity Policies and Protocols – In the private and academic sectors, cybersecurity threats may also present the greatest threat to national security. In order to protect their intellectual property and prevent foreign nations from using their innovations against the United States and American citizens, businesses and universities must take appropriate measures to prevent cyber intrusions. What is “appropriate” will depend on the nature of the threat presented in the event of foreign misappropriation or infiltration.
• Protecting Critical Infrastructure – The Cybersecurity and Infrastructure Security Agency (CISA) has identified protecting critical infrastructure as one of its top national security priorities during the novel coronavirus (COVID-19) pandemic. For private-sector entities and academic institutions involved in developing and protecting the nation’s critical infrastructure, this means that taking appropriate measures to prevent malign attacks needs to be a top priority as well.
• Monitoring for COVID–19 Exposure Risks – While the technological and economic risks arising out of the COVID-19 crisis are substantial, businesses and universities must not lose sight of the fact that we are still facing an unprecedented public health crisis. The mortality risks associated with COVID-19 are yet to be contained; and, even once the curve has been flattened, the risk of employees, students, customers, and patients becoming infected will remain.

When considering the necessity of implementing such solutions in response to what should prove to be a relatively short-term risk in the COVID-19 outbreak, companies and academic institutions must consider the fact that these are not risks that are specific to the present circumstances.

Just as many businesses are likely to permanently shift their operational models in light of the lessons learned during the crisis (particularly with regard to having employees work from home), malign foreign entities are likely to move forward with the insights they have gained as well. In particular, economic espionage and intellectual property theft were concerns prior to the pandemic, and current indications are that many foreign actors will use the pandemic as a launching point for future efforts. While most Americans are waiting for life to return to normal, the reality is that we are very likely to face an entirely new normal after the COVID-19 virus is contained. Public and private companies and institutions will continue to play an increasingly important role in protecting national security, and those that take the necessary steps to do their part will see direct and indirect benefits in many facets of their operations.

Contact the National Security Lawyers at Oberheiden P.C.

If you have questions about your company’s or academic institution’s obligations with regard to protecting national security, we encourage you to get in touch. To speak with one of our senior national security lawyers in confidence, please call 888-680-1745 or contact us online today.