Stewart A. Baker

Partner

• sbaker@steptoe.com
• vCard
• Washington Office

Stewart A. Baker is a partner in the Washington office of Steptoe & Johnson LLP. He returned to the firm following 3½ years at the Department of Homeland Security as its first Assistant Secretary for Policy.

At Homeland Security, Mr. Baker created and staffed the 250-person DHS Policy Directorate.  He was responsible for policy analysis across the Department, as well as for the Department’s international affairs, strategic planning and relationships with law enforcement and public advisory committees.  This work required a broad understanding of all aspects of the Department’s activities, including maritime regulation, customs enforcement, immigration, identity management, SAFETY Act implementation, money laundering enforcement, government contracts, and regulation of travel and air transportation, and its role in the Committee on Foreign Investment in the United States (“CFIUS”).

While at DHS, Mr. Baker led successful negotiations with European and Middle Eastern governments over travel data, privacy, visa waiver and related issues.  He devised a new approach to visa-free travel, forged a congressional and interagency consensus on the plan and negotiated acceptance with key governments. 

He also managed the passage and implementation of the SAFE Ports Act, led the Department’s policy effort to reform federal immigration laws, and transformed the Department’s role in CFIUS, helping to drive the first rewrite of the CFIUS law and regulations in a generation. 

Telecom, Internet & Media
Mr. Baker managed one of the nation’s premier technology law practices at Steptoe before accepting the DHS post.  Described by The Washington Post as “one of the most techno-literate lawyers around,” Mr. Baker’s practice covers national security, electronic surveillance, law enforcement, export control encryption, and related technology issues.  He has been a key advisor on US export controls and on foreign import controls on technology. He has also advised companies on the requirements imposed by CFIUS.  In addition, he was responsible for spearheading the government-private sector coalition that permitted major telecommunications equipment manufacturers and carriers to break the decade-long deadlock with law enforcement on wiretapping of modern technology, permitting successful implementation of the Communications Assistance for Law Enforcement Act (“CALEA”).

In 2010 Mr. Baker's memoir of his time at the DHS, Skating On Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism, was published by Hoover Press. Drawing on his experiences, Mr. Baker examines the technologies we love–jet travel, computer networks, and biotech–and finds that they are likely to empower new forms of terrorism unless the United States changes its current course a few degrees and overcome resistance to change from business, foreign governments, and privacy advocates.

International Trade
Mr. Baker’s practice includes issues relating to government regulation of international trade in high-technology products, and advice and practice under the antidumping and countervailing duty laws of United States, European Community, Canada, and Australia.  He also counsels clients on issues involving foreign sovereign immunity, and compliance with the Foreign Corrupt Practices Act.  Stemming from his role at DHS, Mr. Baker has a deep background in the international implications of US security policy – from the disputes over US collection of data from international businesses to the US statutory command that all containers being shipped to the US be scanned before leaving foreign ports.

Worldwide Arbitration
Mr. Baker has handled the arbitration of claims exceeding a billion dollars, is a member of national and international rosters of arbitrators, and is the author of articles and a book on the United Nations Commission on International Trade Law arbitration rules.

Appellate
Mr. Baker has had a number of significant successes in appellate litigation and appearances before the United States Supreme Court.  He developed – and persuaded the Court to adopt – a new theory of constitutional federalism that remains the most vibrant 10th Amendment doctrine of the past 30 years.  In addition to having filed many Supreme Court and appellate briefs, Mr. Baker was appointed by the Supreme Court to brief and argue Becker v. Montgomery and was recognized in the Court’s opinion for his “able” advocacy.  He founded the State and Local Legal Center, which represents state and local governments before the Court; and his writings on appellate and constitutional issues have been cited in various opinions of the Court.  His brief opposing the federal government in New York v. United States, 488 US 1041 (1992), was described by Assistant Attorney General Walter Dellinger as “one of the most influential amicus briefs ever filed in the Supreme Court.”

Noteworthy

• Named a Top Lawyer in National Security by Washingtonian magazine, 2011
• Recommended, Legal 500 US 2010; Media, Technology & Telecoms: Telecoms and Broadcast - Regulatory.
• Distinguished Visiting Fellow, Center for Strategic and International Studies, 2009
• Assistant Secretary for Policy, Department of Homeland Security, 2005-2009
• General Counsel, Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, 2004-2005
• General Counsel, National Security Agency, 1992-1994
• Deputy General Counsel, United States Department of Education, 1979-1981
• The Washington Post list of seven Washington lawyers who distinguished themselves in 1998

Select News & Events

• Investing In Security: Vital Issues in Export Controls, FCPA, OCI, CFIUS and FOCI Webinar
• Washingtonian Names Nine Steptoe Partners ‘Best Lawyers’
• The Wall Street Journal Features Steptoe’s Baker in Panel Discussion on Online Privacy
• The Wall Street Journal Quotes Steptoe’s Baker in Article about SEC’s New Guidelines on Cyber Attack Disclosures
• Stewart Baker Discusses Pentagon’s New Cybersecurity Plan
• Media Quote Stewart Baker on Arrests of PayPal Cyber Hackers
• Cyber Security, National Security and Economic Security Seminar, June 28, 2011, This is a Steptoe-sponsored event presented by the Federalist Society
• Stewart Baker and Michael Vatis to Present at WMACCA’s Global Issues Forum on the Perils of Taking Information Technology Global, May 3, 2011
• Stewart Baker to Present at ACI’s Advanced Summit on Complying with Global Encryption Controls, April 12, 2011
• Global Mobility Workshop, June 10, 2010, (A Steptoe-Sponsored Event)
• US China Business Council/US Information Technology Office Cybersecurity Briefing, May 12, 2010
• Stewart Baker to speak at the CFIUS: Meeting Enhanced National Security Review of Foreign Investments, June 4, 2009

Selected Publications

• Denial of Service
  Lawyers are crippling America's ability to defend against cyberwar with arcane rules and regulations. But war waits for no man.
  September 30, 2011, Foreign Policy
• A Security Turf War?
  An odd attack on the NYPD
  August 28, 2011, New York Post
• How Europe Puts America at Risk
  October 8, 2010, The Washington Post
• “Staying Ahead of CFIUS”, The Deal
  October 1, 2010
• Addressing National Security Concerns
  September 24, 2010, Insight
• New Executive Order to Prompt Changes in Security Standards for Biolabs
  September 3, 2010
• Cyber Security Alert - Major Cyber Security Threat Affecting US Companies
  July 28, 2009
• "Trade and Electronic Commerce"
  2005, The World Trade Organization: Legal Economic and Political Analysis

More Publications »

Professional Affiliations

• Council on Foreign Relations (1994-present)
• President’s Export Council Subcommittee on Export Administration (2003-2005)
• Commerce Department’s Industry Trade Advisory Committee on Information and Communications Technologies, Services, and Electronic Commerce (2003-2005)
• Markle Foundation Task Force on National Security in the Information Age (2002-2004)
• Federal Trade Commission’s Advisory Committee on Online Access and Security (2000)
• American Bar Association Standing Committee on Law and National Security (1998-2005)
• Member, Y2Ktoday Advisory Board (1999)
• Chair, State and Local Legal Center Advisory Board (1981-92; 1994-2005)
• International Telecommunication Union Experts Group on Authentication (1999)
• Member, President’s Export Council Subcommittee on Encryption (1998-present); Acting Chair (1998-1999)
• Member, Free Trade Area of the Americas Experts Committee on Electronic Commerce (1998-2005)
• Member, US Delegation, UNCITRAL Group of Experts on Digital Signatures (1997-2005)
• Member, International Chamber of Commerce Group of Experts on Electronic Commerce (1996-2005)
• Member, US Delegation, OECD Group of Experts on Cryptography Policy (1995-1997)
• Member, International Chamber of Commerce Working Party on Digital Authentication (1996-1998)
• Member, Defense Science Board’s Task Force on Information Warfare (1995-1996 and 1999-2001)
• Member, Board of Editors, The Internet Newsletter (1997-2005)