Business organizations are facing numerous challenges owing to the domestic and foreign players who are keen on getting their hands on the sensitive trade secrets. As it is, businesses thrive because they have a secret formula or code, which gives it an upper hand against its competitors. However, with the increase of technological solutions individuals can hack or breach the systems to lay hands on these trade secrets, which then spell doom for the concerned organizations. The US has in particular faced significant economic loses owing to the infiltration of its corporations and agencies by foreign nations which are keen on tilting the economic landscape. The US lacks a central agency to handle trade secrets cases, and businesses have to rely on the Uniform Trade Secrets Act (UTSA) which not as effective. Moreover, owners of trade secrets are reluctant to report a breach of these secrets since they fear that doing so would make these secrets public. Following this, it is important for the federal government to enhance the Economic Espionage Act to ensure that American innovators are assured of the safety of their trade secrets.
Analyze two (2) issues involved in investigating economic espionage and trade secrets to determine the direct and indirect impact to the organization and the security methods needed to prevent or mitigate the impact of further incidents.
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Investigations into economic espionage and trade secrets follow a specific process aimed at determining whether the trade secrets in question qualify to be treated as trade secrets. As it is trade secrets must be viewed as something that confers some competitive advantage and that the owner has undertaken several measures to maintain its secrecy. Moreover, the owner of the trade secret must prove that the defendant acquired, used and disclosed the secret improperly and without consent (Yeh, 2016). The organization should ensure that they put up efficient security measures to prevent or mitigate the impact of further incidents. The organizations can achieve this by letting its employees sign non-disclosure agreements. In essence, the non-disclosure agreements establish that those employees that are exposed to the trade secrets will not by any means as doing so attract legal ramifications. The organizations take these measures since it has been established that employees play a central role in the leakage of trade secrets. Furthermore, organizations must increase the security of their computer systems by use of multi-layered security to reduce cases of economic espionage as hackers target weak organizations systems.
Compare economic espionage to misappropriation of trade secrets to determine which creates greater damage to the victim. Identify potential remedies
Economic espionage and misappropriation of trade secrets contribute to reputational and economic damage to the victim who had been using the trade secrets to gain competitive advantage. However, economic espionage tends to cause greater harm to the victim as it is done on an international scale to benefit foreign corporations. In essence, it is usually more difficult to deal with foreign perpetrators owing to the fact that laws regulating economic espionage vary across the nations. As at now, the US uses the Economic Espionage Act (EEA), which was enacted in 1996 to deal with economic espionage. However, this act has not helped to bring down economic espionage as foreign nations are still targeting major US organization leading to huge economic losses. Moreover, the process of prosecuting economic espionage cases under the EEA Act is lengthy requiring the trade secret owner to get approval from the FBI and Justice Department of Washington. Moreover, one must get approval by the Computer Crime and Intellectual Property Section of the Criminal Division for indictments to be used (Doyle, 2016). There is a need to reduce all these processes by creating a central agency for dealing with economic espionage to encourage reporting and determinations. Furthermore, there is a need to amend the EEA Act to allow the affected companies to sue the perpetrators for the harm caused by the loss of trade secrets.
Describe how the investigation and prosecution of the misappropriation of a trade secret is accomplished without divulging the trade secret
The criminal justice system has put up measures to ensure that the trade secrets will not be made public which would then put the plaintiff at a greater loss. The main tool used to ensure that the trade secrets will not be made public is protective orders. Essentially protective orders highlight the confidentiality agreement which the affected parties get into to ensure that the trade secrets are protected before, during and after the judicial process. The affected parties usually negotiate the terms of the concerned protective order, which they then present to the court. The court has the responsibility of resolving any of the disputed issues in case the parties do not reach an agreement owing to certain provisions. However, it is important to note that the court has the responsibility of balancing the need to protect the confidential information while at the same time allowing for the realities that may come with particular litigation. The Congress enacted § 1835 to enhance the protection of trade secrets by making protective orders mandatory (Levine & Flowers, 2015).
Describe the complications introduced if the economic espionage or misappropriation of a trade secret involved is a foreign entity
Foreign entities are now more than ever targeting American corporations and companies to get invaluable trade secrets with an aim to become economically competitive. This foreign involvement in misappropriation of trade secrets and economic espionage proves to be complicated. Unlike domestic perpetrators who are indicted easily as they fall within the US constitutional and legal provision, foreign perpetrators operate under different legal provisions. The host countries may not collaborate with the US especially if the perpetrators are acting in their own as opposed to working for their governments (Levine and Sandeen, 2015). Moreover, most nations may fail to produce the perpetrators especially if there is not a uniform legal provision to enhance the collaboration. Furthermore, foreign entities are using ingenious ways to get trade secrets from the US, for example, some of them form business relations with the US firms to get sensitive information without being noticed.
References
Doyle, C. (2016). Stealing trade secrets and economic espionage: An overview of the economic espionage act. Congressional Research Service. Retrieved on 4 February 2019 from https://fas.org/sgp/crs/secrecy/R42681.pdf
Levine, B. L., & Flowers, T. C. (2015). Your secrets are safe with us: How prosecutors protect trade secrets during investigation and prosecution. American Journal of Trial Advocacy 38 (461), 461-484.
Levine, D. S., & Sandeen, S. K. (2015). Here come the trade secret trolls. Washington and Lee Law Review Online, 71 (4), 230-263.
Yeh, B.T. (2016). Protection of trade secrets: overview of current law and legislation. Congressional Research Service . Retrieved on 4 February 2019 from https://fas.org/sgp/crs/secrecy/R43714.pdf
