First, I want to state how thrilled I am to be joining the great group here at CITP. Every CITP scholar that I’ve gotten to know over the past several years have become friends and influenced my work in areas ranging from voting machine code access to international lawmaking processes. I’m delighted to be a part of CITP’s dynamic team and environment and look forward to an exciting year. Now, on to business.
Congress is actively considering legislative responses to increased foreign cyber-espionage, driven by the perception that theft is increasing both in scale and in severity. Two bills – the “Defend Trade Secrets Act of 2014” (“DTSA“) and the “Trade Secrets Protection Act of 2014” (“TSPA“) – are the latest attempts at legislating in this area. The bills both create a new private cause of action under the Economic Espionage Act (“EEA”) for theft of commercially-valuable secret information.
Currently, trade secret misappropriation is a federal crime under the EEA, but trade secret owners can seek civil remedies only in state courts, under state laws. The theory underlying the Acts is that a private cause of action under the EEA will be an effective weapon against foreign cyber-espionage. Current law, so the argument goes, is ineffective in combating cyber-espionage.
Unfortunately, the bi-partisan sponsors of the Acts have gotten this one wrong. In reality, the Acts will create or exacerbate many existing legal problems, yet solve none. As such, Sharon Sandeen and I authored the linked letter in opposition to the sponsors of the Acts and Congress, which has been signed by 31 United States legal academics. While acknowledging that the United States needs to increase protection against cyber-espionage, we assert that, in sum, the Acts should be rejected for five primary reasons: