CFIUS’s focus on personal data is a marked change from just a few years ago, when personal data was rarely considered a primary concern for the Committee.Given developments over the last few years, however, it is not surprising that CFIUS expressed concerns about a Chinese investment in a US company that collects substantial amounts of US person data.If Grindr is sold at the request of CFIUS, it will turn out to be one of a handful of cases in which CFIUS’s objections have led to the unwinding of a transaction post-closing.

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Reporting suggests that outright rejections of transactions have become increasingly common under the Trump Administration, particularly with respect to deals involving Chinese buyers.

In many cases, the “mitigation” most likely to succeed under current CFIUS practice involving a global business with US operations is to carve the “US business” out from the scope of the proposed investment.

The Grindr case has generated headlines due to the odd paring of a dating app owned by a Chinese gaming company and US national security.

In our view, the case confirms the continued validity of several recent trends in US government policy and procedures for reviewing foreign investments in the United States.

This is particularly true with respect to personal data and with respect to the tech sector where CFIUS has reportedly scuttled a number of deals with Chinese buyers.

Many observers, including a number of key members of Congress, viewed the passage of FIRRMA and the recent rollout of the CFIUS “pilot program” for investments in US “critical technology” as specifically aimed at countering China (although the act and pilot program apply to investments from all countries).

With the exception of the “pilot program,” the traditional CFIUS process has been, and remains, voluntary.

In most transactions, there is no requirement to file for CFIUS approval.

Typically, when CFIUS identifies national security concerns the Committee will negotiate with the parties to implement so-called “mitigation measures” to alleviate the concern. However, for issues related to sensitive US person data, mitigation may include restrictions on access to the data by foreign persons.