Michael J. LeMieux
A-CAPP Center Law Enforcement Fellow, Retired FBI Supervisory Special Agent Former Program Manager, National IPRC and currently a Consultant
Following my recent retirement from the FBI at the National Intellectual Property Rights Coordination Center (IPRC), I was asked for some impressions of the work performed by the IPRC, by fellow law enforcement officials who were not involved with intellectual Property (IP). First and foremost, I noted the importance of the industry-government partnership and how well that fits into the IPRC’s law enforcement taskforce environment. The IPRC has a remarkable collaboration of expertise able to solve difficult problems in IP enforcement. But another observation I offered surprised my former colleagues: industry representatives infrequently reached out to us, though we were available and ready to discuss myriad technical and proactive crime-fighting strategies at which federal law enforcement excels. I have since asked many of my industry colleagues why industry might not seek that guidance. The answer, generally, was “unfamiliarity.” This is unfortunate, because the combination of the today’s “customer-service” approach in the federal government with federal law enforcement’s expertise and emphasis on forward-looking strategies to combat IP crime can provide many advantages to industry when engaging with their law enforcement partners.
Your Partners in Crime
A quick review of many federal agency websites finds frequent references to “customer service” and “stakeholders.” This is a reality for federal law enforcement today. It is one quite different than that of several decades ago when federal law enforcement was more guarded with our state and local law enforcement partners, let alone industry representatives. Fortunately, that has changed and federal law enforcement stands more ready than ever to join industry efforts to tackle the most significant crime problems. IP enforcement continues to benefit from ongoing government commitment to partnerships with industry and there are no signs those efforts will subside. After all, it is an approach that simply works! That commitment is no more evident than in the continued efforts at the IPRC, the FBI’s establishment in 2014 of the Office of Private Sector for liaison with the U.S. business community, and the well-respected role of the Office of the U.S. Intellectual Property Enforcement Coordinator.
Law enforcement and industry each bring something to our common fight to protect IP, but we operate in very different environments. Without a vigorous and ongoing sharing of information beyond criminal cases, we risk reverting to default roles of “investigator” and “complainant”. Most of our interactions center on criminal prosecutions. Such engagements do not foster the sharing of other information that can maximize our common efforts in broader strategy building. Criminal investigation and prosecution are naturally narrow in focus. It takes more effort to expand those discussions to conceptual or technical areas where strategy can be developed. These discussions are where we are likely to see significant advances in combating IP infringement, and at a scale that has a greater impact on the problem.
There are three primary benefits to an ongoing exchange between federal law enforcement and industry: those to industry, those to law enforcement personnel, and those that benefit both.
Industry Benefit – IP-focused law enforcement is engaged with the full spectrum of e-commerce intermediaries, as well as brands across a wide-range of industries. Many of the lessons learned from those ongoing efforts easily translate to other intermediaries or brands, even if confidential details are necessarily removed. Federal law enforcement also specializes in the use of sophisticated investigative techniques, many of which are increasingly being used by industry. Federal law enforcement can provide sound advice on topics such as covert online safety or how to secure the best evidence in criminal cases.
Law Enforcement Benefit – Some of the most significant benefits that industry provides to law enforcement are expertise and education. Traditionally, law enforcement has used brand expertise most fully in investigating and prosecuting IP crimes. But there are other situations where this information can be useful to federal law enforcement efforts, especially in leveraging those efforts to catch the biggest offenders. Industry information on current mitigation efforts with intermediaries, on brands or industries with similar crime problems, and even on the efficacy of specific third-party providers of brand protection services can all help larger-scale federal enforcement efforts.
Joint Benefit – By working together early in a case, industry can learn what federal prosecutors need for action, and federal law enforcement can ensure evidence-gathering proceeds in a way that is most useful for prosecutors.
To realize these benefits, industry partners should follow these steps.
Initiate more frequent interactions with federal law enforcement specializing in IP and with a purposeful expansion of topics to discuss. This will ultimately provide a greater benefit for your brand protection efforts.
Expand your interactions with federal law enforcement partners to areas such as technical and proactive crime fighting topics. This will open opportunities to share critical information that may be valuable not just for a specific case but also for an overall IP crime-fighting strategy.
Interact with as many members of a law enforcement team as feasible. Law enforcement entities, especially at the IPRC, are often staffed with senior investigators and analysts with expertise that goes beyond the actual crime topic at hand. Given the criminal enterprise nature of the largest counterfeiting operations, it’s important to remember that many of the same federal investigators of IP infringement may also have expertise in drug investigations, organized crime, fraud schemes, or cybercrime. By expanding your relationships across different roles (e.g., investigators and analysts) within the same law enforcement entity, you will benefit from the knowledge of different disciplines in the same organization.
Ask questions…lots of them. Our federal law enforcement employees work for you. If they can’t answer a specific question, due to policy or legal considerations, they will tell you so, but they will always help as much as they can. How often should a brand protection professional contact a federal law enforcement counterpart? I’d stop just short of being told not to call anymore!
By expanding the frequency and scope of interactions with federal law enforcement engaged in IP, both industry and law enforcement stand to benefit. Benefits include availability of a wide-variety of information that will improve overall IP detection and assist with mitigation efforts. The relationship between law enforcement and private industry has evolved into a cooperative model. That is nowhere more evident than at the IPRC. Industry should maximize those engagements to continue expanding beyond the traditional criminal justice roles of investigators and complainants.
THE BRAND PROTECTION PROFESSIONAL | MARCH 2017 | VOLUME 2 NUMBER 1
2017 COPYRIGHT MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES