![]() What is the purpose of the Economic Espionage Act? The history and debate surrounding the act’s passage indicate that Congress primarily wanted to increase protections granted to intellectual property. Congress enacted the Economic Espionage Act in order to further protect corporate trade secrets from unlawful misappropriation or theft. How easily the piece of information could be legally created, duplicated or purchased by competitors.How much energy or money the company put into creating or developing the piece of information.How valuable the information is to the company, as well as to its competitors.How closely the company protected and guarded the piece of information.How well known the piece of information is by the employees of the company in question.How well known the information is, other than within the company itself.However, generally, the case law analyzed six separate factors before deeming a specific piece of information (or process or other item) a “trade secret”: Case law in all state jurisdictions as well as in federal courts defined trade secrets in slightly different specific details. In states in which the UTSA has not been enacted, the definition of “trade secret” is much as it was before the UTSA was created. Thus, whatever the information, process or other item in question may be, in order to be a trade secret it must be valuable in a way that is closely held by the company owning it, which must take some sort of reasonable measures to maintain the item’s security and secrecy. The parameters in both the (i) and (ii) clauses must be met in order to qualify as a trade secret under the UTSA. Within its text at section 1(4), the UTSA defines trade secrets as "information, including a formula, pattern, compilation, program, device, method, technique, or process that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” The academic prosecutions and other signals suggest that may be shifting, however, as the legal structure and larger incentives are directed toward greater recognition of proprietary interests in academia.What makes a trade secret is typically defined by applicable law, either a codified statute or, if none exists in a specific jurisdiction, relevant published judicial opinions (or “common law”).Īt the state level in the United States, the Uniform Trade Secrets Act has been enacted by 47 states as well as the District of Columbia. Accordingly, this Article posits that while there is no de jure exceptionalism for universities when it comes to espionage, there may be de facto exceptionalism due to the lack of a proprietary culture that is typically at the heart of espionage cases. I theorize that this is because academia is grounded not in a culture of ownership, but of openness and sharing. Unlike in the corporate arena, there are fundamental questions surrounding the feasibility of prosecuting espionage in the university context. Even one district court judge in granting a lighter sentence to one professor observed that contrary to the prosecution’s framing, the case was not one of espionage. Most telling, although labelled as spies, not one of the professors was actually charged with economic espionage. Yet, my investigation and analysis of these cases reveals much ambiguity about the very concept of academic economic espionage. ![]() Since 2019, over a dozen high profile criminal prosecutions have put prominent professors at major research universities across the country in handcuffs and almost all the professors have been convicted of a crime. This geopolitical concern about espionage has had real world and personal consequences in academia. The DOJ’s grave concerns about espionage in academia have continued, and even more recently the Director of the FBI has lamented that American taxpayers are footing the bill for China’s technological development. In 2018 then-Attorney General Jeff Sessions announced that Chinese espionage was occurring in university research labs, and the Department of Justice subsequently made it a high priority to prosecute economic espionage in academia.
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