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Trade secrets can be termed as a very important form of intellectual property. It can be a result of years of research and might cost millions of dollars. If we take a look at the economy of the United States, we will see that a substantial amount of the U.S. economy is based on the innovation as well as the research and development of new technologies and other knowledge based ideas.
As a part of the trade secret definition, the most important point is ‘information’. Any form and type of financial, scientific, business, technical, economic, engineering or any other information, be it tangible or intangible, and despite the way it may be stored in, it is an important document, and it can not be copied or stolen. If it is registered with the Federal Government, than the theft is a crime under the law. The EEA protects a wide variety of technical and tangible and intangible information under the current civil laws.
In the second part, it has been clearly defined that the owner of the trade secret has to take reasonable measures to keep the information secret, and there are several steps mentioned by the Federal Laws, that is issued mainly for special intellectual property protection. Every owner has to use these protections for safe guarding the intellectual property from the hands of economic espionage.
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Economic espionage and misappropriation of trade secrets
The Economic Espionage Act of 1996 aimed to stop all the attacks on both foreign and domestic trade secrets. But as per the EEA, every theft of trade secret is not a criminal offense. There are several steps that have to be followed to find out if the case is appropriate to be termed as intellectual property theft of something related to that. Simply speaking, the traditional instances of theft are when the defendant physically takes the information from the possession of the owner, or uses different non-traditional methods of destroying or stealing intellectual property from the owner. In the first case, the second party will not have the possession of the intellectual property, yet he will be penalized as he has destroyed the intellectual property.
Both economic espionage as well as misappropriation of trade secrets are criminal offences according to the recent jurisdictions, and most importantly the EEA guidelines. According to Fialka (1999), basically there are two different forms of economic espionage. The basic purpose of the espionage is to gain knowledge about any target organization. It includes such aspects as acquisition of intellectual properties, like new ideas, different processes or formulas or simple aspects like customer databases and marketing researches. Aspects like bribery, technological surveillances and blackmailing. Not only the commercial organizations, but government offices can be a target of economic espionage.
According to Nasheri (2005), this type of espionage mainly occurs in the technical industry, but it has been seen that nowadays, it is also taking place in the industries like aerospace, biotechnology, energy research and some other fields. Any industry with information that can be successfully used by the competitors may be a target of this kind of espionage, besides Silicon Valley is the most targeted area of industrial espionage in the World.
There is a certain kind of difference between economic espionage and trade secrets. When information is stolen, it can make the difference between the success of a project and failure of the same. But in the sale of a stolen trade secret, the competition is leveled between two different parties, and some times it becomes beneficial for the part of the competitor. We can say that industrial espionage is the biggest threat to a business that thrives on information.
With the advent of technical aspects, we are having an expanded definition of this type of espionage. If someone tries to sabotage a corporation it can be termed as industrial espionage. Even the U.S. Government has introduced a polygraph examination that is known as ‘Test of Espionage and Sabotage’ but basically the entire counter –measures are quite identical in their expositions.
Investigation and prosecution
There are some common defenses that have been raised in both the trade secrets thefts as well as the economic espionage cases. It is important for the prosecutor to understand the potential defenses in the early part of the case. This is very important as the trade secret thefts can sometimes go to the appropriate forums for the proper evaluation.
It can be said that the Government has failed to prove any reasonable doubt that the defendant has failed to convert the general trade secrets to the general economic benefits of any other corporation or industry. Nasheri (2005) noted that it has been seen in many cases when the employee goes to steal the trade secrets just before he or she leaves the job and submits all the information to the new organization for their own benefits. Another important thing is the proper knowledge of what types of secrets have been stolen. One can say that he or she had unknowingly taken the information and never used it in commercial purposes. It is one of the most important ways the defense may rely on.
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Economic espionage complications
The Border Search Authority has been really helpful in the investigation of economic espionage. In many cases, a foreign entity is involved in the trade secret theft and the agent crosses the border to a safe place. According to Fialka (1999), this is why the border search authority helps the government to keep track of arrivals and departures of people in the cases of economical espionage and trade secrets theft. But there are three important clauses in the fact. First, the search has to take place at the inner border and only a special class of law enforcement agents can conduct the search. Lastly, the extent of the authority is an important aspect. But still with these limitations, Nasheri (2005) noted, the USA border search authority and other law enforcement agencies have successfully stopped a number of economic espionages involving foreign entities. But in that case, it is hard to track the employer and the person who is arrested or being detained. But we can say that it is a very important development in the process. With advances in technology and globalization, these types of economic espionages and theft of trade secrets will always take place, but still the efforts or EEA and other Federal Departments are really commendable.