GCs Should Consider Their Company’s Approach to Law Enforcement

Our country’s relationship with law enforcement right now is complicated. As a result, you may need to do some thinking about how your company interacts with the police.

Consider how gun safe manufacturer Liberty Safe got caught in a cultural crossfire when cooperating with the FBI in August. The agency contacted the company after arresting Nathan Earl Hughes of Fayetteville, Ark. for his alleged participation in the Jan. 6 Capitol riot. Armed with a search warrant, agents inspected Hughes’ home, where they found a locked Liberty gun safe.

Law enforcement obviously has a strong interest—and a legal right—to look into a safe kept in the home.

What to do. An agent could ask someone at the home to open it, but a person might understandably be reluctant to admit they have access to the safe if there’s contraband inside. The police could try to force their way into the safe, but that takes time, expertise, and equipment.

The police could leave the safe and come back the next day with equipment, but meanwhile a friend or co-conspirator could come to the house and remove incriminating evidence from the safe. Or the police could confiscate the safe, but have you ever tried to move a 1,500-pound gun safe that’s been bolted into the floor?

The easiest answer, of course, is simply to contact the safe manufacturer, show them the search warrant, and ask for help. That’s exactly what the FBI did. Liberty—after confirming the existence of the warrant and what they perceived as the government’s right to search it—gave the FBI the entry code.

That created a firestorm on social media, where conservative commentators criticized the company for buckling to law enforcement, arguing that the company should have “fought the warrant” to protect their customers’ guns.

In an effort to avoid a boycott and get out of Bud Light culture jail, the company immediately announced a new policy where, going forward, they would require a subpoena before turning over a safe code to the government. The company also offered to erase safe codes from its files upon customer request.

To be clear, Liberty Safe had no legal obligation to turn over Hughes’s safe code to the police—the search warrant was directed to Hughes’s home, not to Liberty. Liberty could have told law enforcement to get a subpoena specifically directed to Liberty for the code, which would have created the obligation.

Yet the exercise of getting a subpoena is routine and does little to protect individual rights— subpoenas are given out freely by clerk’s offices with no judicial review, and in many jurisdictions prosecutors have a stack of subpoenas that they simply fill out on their own.

Where a judge has determined there is probable cause to search a location, getting law enforcement to fill out a piece of paper is little more than a formality that creates a challenge for law enforcement to secure the safe in the interim.

Should Liberty Safe have required a subpoena for its records? Should it have even gone further, and pledged to fight any subpoena in court to protect its customer’s privacy? Or did Liberty balance its civic duty to work with law enforcement while protecting customer privacy by simply ensuring that the police had a proper search warrant?

And who are Liberty’s customers—gun owners who may have deeply held beliefs about their firearms? Or police departments that buy a lot of safes to secure their own firearms?

I doubt this was Liberty’s first brush with a law enforcement request regarding safe access, but did they consider their policies in light of how society looks at law enforcement today? Did company executives weigh in, or was it simply—and mistakenly—viewed as a legal issue?

While the Jan. 6 connection was the spark that kicked off this Liberty powder keg, it’s important to remember that law enforcement reaches out to businesses every day for cooperation in investigations, and needs help to do its job.

Security camera recordings, smartphone GPS data, gas station receipts, online auction purchases, hotel records—in today’s digital connected world, it seems that a criminal leaves evidentiary tracks everywhere, and law enforcement is casting a wider net to gather that information to enforce the law.

No company should be surprised to get a phone call from the police that starts like this: “I was wondering if you all kept records on …” And then, “We’ve got an urgent situation on our hands—we need that information as fast as we can get it.”

A modern company should involve cross-functional leaders and get input from law enforcement, customers, and a crisis management expert to create a policy around privacy and law enforcement that at least tries to balance competing interests. It should ensure that all employees with access to records have clear, specific written instructions on how to respond when the government calls, so that these matters are handled consistently.

Liberty might, for example, have concluded that the downsides of storing codes outweighs any benefit. Or that giving customers the right to ask for code deletion from Liberty records would be smart, coupled with a policy that requires a subpoena for records but makes company personnel available to law enforcement 24 hours a day to provide fast subpoena response.

Your company’s relationship with law enforcement is more than a simple legal exercise. It’s a brand decision, informed by your product, your customer base, and your values; it can have real business implications.

Should your company cultivate a relationship with law enforcement by speaking at law enforcement conferences, and working with them to understand your business? Or take another tact, hold the police at arm’s length, and require them to jump through all the hoops to get your help?

You never know when the police may call, or show up at your door asking for help. “Hey Anne, FBI on line 1—they’re on site with a search warrant in a national security case and they need to get into one of our safes, it’s an emergency—will you take the call”?

There’s likely no easy answer.

Rob Chesnut consults on legal and ethical issues and was formerly general counsel and chief ethics officer at Airbnb. He spent more than a decade as a Justice Department prosecutor.