1. The original Policy
The Policy, which was announced in November 2017, aimed to provide guidance to corporations on the definition of full cooperation with the DOJ in FCPA matters, and the benefits that could follow from such cooperation. Under the 2017 Policy, corporations that satisfied the defined standards of “voluntarily self-disclosure, full cooperation, and timely and appropriate remediation” would be afforded a presumption that FCPA matters would be resolved through a declination, absent aggravating circumstances involving the seriousness of the offense or the nature of the offender.
Further, in order to show that it had undertaken timely and appropriate remediation, a corporation had to demonstrate that it had appropriately retained business records, including by “prohibiting employees from using software that generates but does not appropriately retain” business communications.
The broad prohibition seemed to cover employees’ use of mobile messaging apps. Such apps, which include WhatsApp and WeChat, are commonly used in many major markets for business communications. For example, WeChat is regularly used by employees in China, and in certain instances to the exclusion or neglect of corporate email accounts.
This Policy, however, left unanswered a number of questions with respect to its practical implementation and enforcement. Were U.S. and multinational companies operating in these markets required to impose an outright ban on their employees from using these messaging services? Would such a Policy be realistic, given the widespread use of mobile messaging apps in both social and business contexts?