Trade Secret Legislation Awaits Obama’s Signature

Organizations will soon have another avenue to seek relief from trade secret theft, as President Obama is expected to sign into law the Defend Trade Secrets Act. The bill, which gives companies the ability to pursue trade secret cases in federal courts rather than at the state level, is the latest in a string of headlines related to stolen intellectual property.

The effort is meant to help combat the growing problem of espionage, which costs the U.S. $300 billion and 2.1 million jobs each year, according to a 2013 report from the Commission on the Theft of American Intellectual Property.

Many different individuals and groups have been associated with cyber-espionage so far this year, according to threat intelligence data from SurfWatch Labs.

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said the DTSA would “build on efforts over the past two years and take a significant and positive step toward improving our nation’s trade secret laws.”

The first version of DTSA was introduced in 2014, just weeks before the U.S. made waves when — for the first time ever — they filed charges against five Chinese military hackers for cyber-espionage against U.S. corporations. That 2014 indictment centered around alleged hacking and theft related to six organizations: Westinghouse, SolarWorld, U.S. Steel, Allegheny Technologies, the United Steelworkers Union, and Alcoa.

Those allegations continue to play out as U.S. Steel recently took steps to request the government prevent imports from China’s largest manufacturers due to, among other things, trade secret theft. A complaint filed on April 26 with the U.S. International Trade Commission under a section of the U.S. Tariff Act alleges those stolen trade secrets led to decades of research in creating the next generation of high-strength steel being taken and reproduced in China. 

The DTSA gives the many organizations affected by the theft of trade secrets another outlet to seek relief, and the version awaiting Obama’s signature has received widespread support (the house voted 410-2 in favor); however, the legislation is not without detractors. When the bill was first introduced two years ago, 31 law professors signed a letter opposing it, and in November 2015 they again called on Congress to reject the DTSA:

While we agree that effective legal protection for U.S. businesses’ legitimate trade secrets is important to American innovation, we believe that the DTSA — which would represent the most significant expansion of federal law in intellectual property since the Lanham Act in 1946 — will not solve the problems identified by its sponsors. Instead of addressing cyberespionage head-on, passage of the DTSA is likely to create new problems that could adversely impact domestic innovation, increase the duration and cost of trade secret litigation, and ultimately negatively affect economic growth.

The federal law does not replace current state laws, the group argued, so it will complicate rather than simplify trade secret litigation by adding a new layer of federal jurisprudence.

What this Means for Business

Most states have adopted a version of the Uniform Trade Secrets Act, which is how most trade secret disputes are currently handled. Once the DTSA is signed into law, organizations will be able to decide whether federal or state courts are more beneficial.

Although most legal experts agree that the DTSA provides a slightly broader interpretation of “trade secrets” as well as additional tools that can be used, the choice of avenue for litigation will likely need to be decided on a case by case basis.

“State courts may still to be a more preferable venue for many plaintiffs, as they typically provide more lenient rules for obtaining ex parte relief and a temporary restraining order,” the National Law Review noted. “Federal courts are often backlogged and may not hear a temporary restraining request immediately. By the time a temporary restraining order is issued, the critical information may be disclosed or forever gone. Thus, an expedited hearing in state court may outweigh the benefits of the federal court option provided by the DTSA.”

Trade secrets are often the most important assets for an organization, and the recent legal developments should serve as a reminder for businesses to assess the risks associated with those secrets, do their best to ensure those secrets are protected, and to have a plan in place so they can take legal recourse should those secrets get stolen.

Author: Jeff Peters

SurfWatch Labs editor and host of SurfWatch Labs Cyber Chat podcast. Focused on using threat intelligence and data visualization in order to bring cybercrime to life and help make organizations safer.

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