In the last few years, the Economic Espionage Act (EEA), a 1996 statute that criminalizes trade secrecy misappropriation, was amended twice, once to increase the penalties and once to expand the definition of trade secrets and the types of behaviors that are illegal. Recent developments also reveal a pattern of expansion in investigation, indictments, and convictions under the EEA as well as the devotion of large resources by the FBI and other agencies to warn private industry against the global threats of trade secret theft. At the international level, the United States government has been advocating enhanced levels of trade secrecy protection in new regional trade agreements This article asks about the effects these developments on innovation. The article examines the rhetoric the government is using to promote its trade secrecy agenda, uncovering that the argument for greater protection appears to derive at least some of its power from xenophobia, and most importantly, from a conflation of private economic interests with national security concerns, interjecting a new dimension to the moral component of innovation policy debates. Analyzing recent empirical research about innovation policy, we ask about the effects of these recent trends on university research and on private market innovation, including entrepreneurship, information flows and job mobility. We argue that, paradoxically, the effort to protect valuable information and retain the United States’ leadership position could disrupt information flows, interfere with collaborative efforts, and ultimately undermine the inventive capacity of American innovators. The article offers suggestions for reconciling legitimate concerns about national security with the balance intellectual property law traditionally seeks to strike between incentivizing innovation and ensuring the vibrancy of the creative environment. We conclude that a legal regime aimed at protecting incumbency is not one that can also optimally foster innovation.
Lewis & Clark Law Review; San Diego Legal Studies Paper No. 16-207
Dreyfuss, Rochelle Cooper and Lobel, Orly, Economic Espionage as Reality or Rhetoric: Equating Trade Secrecy with National Security (January 19, 2016). Lewis & Clark Law Review, 2016; San Diego Legal Studies Paper No. 16-207.