美国1996经济间谍法案的理解Understanding The Economic Espionage Act of 1

Federal Protection of Trade Secrets: Understanding The Economic Espionage Act of 1996

by Arthur J. Schwab and David J. Porter

The

Economic

Espionage

Act

of

1996

(

18

U.S.C.

Ё

1831-1839,

has

gained

considerable

media

attention

since

its

enactment

on

October

11,

1996.

The

EEA's

potentially

severe

criminal

penalties

and

several

high- profile

FBI

sting

operations

leading

to

federal

prosecutions under the EEA have focused the business community's attention on both the new law

and on trade secret protection in general. However, many remain unclear as to the scope, purpose

and

practical

application

of

the

EEA.

This

paper

will

provide

guidance

to

individuals

and

companies regarding issues likely to arise in connection with the application of the EEA.

Prior to enactment of the EEA, federal protection of intellectual property extended only to patents.

Commercially

valuable

confidential

information

and

trade

secrets

have

traditionally

been

protected through the common law, including the Uniform Trade Secrets Act and Section 757 of

the Restatement (First) of Torts. Building upon the law of trade secrets as it developed in the states,

the EEA defines

that bears

keep the information secret; and (3) derives independent economic value through not being known

or readily ascertainable through proper means by others. 18 U.S.C. ?1839(3).

The EEA casts a very broad net in terms of the type of information that is protected by federal

criminal law. Currently, twenty-five states have criminal statutes relating to misappropriation of

trade secrets. For the most part, those state criminal statutes (including Pennsylvania's) apply only

to

theft

of

scientific

and

technical

information.

The

EEA,

by

contrast,

also

prohibits

the

misappropriation of financial, business and economic information, providing considerably broader

federal protection of trade secrets than that afforded by most state criminal statutes.

Trade Secrets Must Be Protected By

Much of the early commentary on the EEA has focused on the law's requirement that the owner of

proprietary economic information take

secrecy of such information in order to obtain the protections of the EEA. 18 U.S.C. ?1839(3)(A).

Some have suggested that the only way a business can be sure its trade secrets are protected under

the EEA is to adopt every possible means of guarding the secrecy of such information.

In

civil

litigation,

parties

seeking

judicial

protection

of

trade

secrets

are

generally

expected

to

guard

the

secrecy

of

such

information

through

means

commensurate

with

the

information's

estimated

value.

Businesses

may

take

any

number

of

steps

to

protect

proprietary

economic

information, including the use of nondisclosure and confidentiality agreements; covenants not to

compete; employee and visitor access controls; computer passwords and firewalls; implementation

of

document

protection

and

retention

policies;

vigilant

training

concerning

the

importance

of

confidentiality;

and

exit

interviews

during

which

departing

employees

are

reminded

of

their

continuing duties with respect to the use and/or disclosure of confidential information. Whether

any combination of these measures will be deemed

confidential information will depend upon the value and competitive sensitivity of the information,

the

nature

of

the

threat

of

disclosure,

and

the

relative

cost

of

implementing

particular

security

measures.

However,

the

EEA's

legislative

history

manifests

Congress's

intention

to

establish

a

fact-based test of reasonableness, and not an inflexible rule requiring maximum security.

Conduct Prohibited by the EEA

The

EEA

contains

two

operative

sections

describing

the

conduct

that

is

prohibited

by

the

law.

Section 1831 applies to actors engaged in foreign economic espionage, and requires that the theft

of trade secrets benefit a foreign government, instrumentality or agent. Section 1832 is a general

criminal trade secrets statute, applicable to anyone engaged in the common

misappropriation of

trade secrets. Both sections punish one who knowingly: (1) steals or misappropriates trade secrets,

(2)

receives

misappropriated

trade

secrets,

or

(3)

participates

in

a

conspiracy

to

misappropriate

trade secrets. 18 U.S.C.

Ё

1831(a) and 1832(a). The territorial scope of the EEA is very virtually

limitless: it criminalizes not only acts conducted within the United States, but also foreign acts,

provided the actor is a United States resident, 18 U.S.C. ? 1837(1), or any

the offense was committed in the United States.

Criminal Penalties

Individuals who violate section 1832 (domestic misappropriation of trade secrets) face penalties of

up to ten (10) years in prison and unspecified fines. 18 U.S.C. ?1832(a). (Under federal law, the

general maximum fine for felonies is $$250,000.) Corporations or other organizations that violate

section

1832

may

be

fined

up

to

$$5

million.

The

penalties

for

engaging

in

foreign

economic

espionage

in

violation

of

section

1831(foreign

economic

espionage)

are

even

greater:

the

maximum organizational fine is increased to $$10 million and the maximum prison term is raised

to fifteen (15) years.

Section 1834 of the EEA provides for forfeiture of a defendant's property during sentencing. The

types

of

property

subject

to

the

forfeiture

provision

include:

(1)

property

obtained

directly

or

indirectly as a result of the actor's criminal violation, 18 U.S.C. ?1834(a)(1); and (2) property that

was used or intended to be used to commit the criminal violation. 18 U.S.C. ? 1834(a)(2).

Handling An Economic Espionage Act Violation

The EEA is a federal criminal statute. As such, it is enforced by the United States Department of

Justice and its United States Attorneys' offices located in each federal judicial district across the

country.

The

EEA

does

not

provide

for

a

private

civil

right

of

action.

Accordingly,

a

victim

of

trade secret theft seeking redress must persuade the federal prosecutor in its judicial district that

the

particular

case

is

worthy

of

prosecution.

Scarce

resources

have

led

many

United

States

Attorneys'

offices

to

establish

monetary

thresholds

($$100,000 or

more)

for

prosecution

in

cases

involving white collar criminal activity. Prosecutors will likely be more inclined to prosecute trade

secret misappropriation involving scientific and technical information than business information

(which

is

harder

to

value),

and

where

there

is

independent

evidence

of

misappropriation

and

criminal intent. Prompt reporting of the misappropriation is crucial, as it demonstrates a sense of

urgency

and

reduces

the

defendant's

ability

to

argue

that

he

obtained

the

trade

secret

through

reverse engineering or parallel development.