Sharon Sandeen at Hamline Law and I have authored a letter dated August 26, 2014 and signed by 31 United States legal academics to the Congressional sponsors of the “Defend Trade Secrets Act of 2014” (“DTSA”) and the “Trade Secrets Protection Act of 2014” (“TSPA”) (collectively, “the Acts.”)
Congress has been weighing how to respond to increased cyber-espionage. The Acts are the latest bills to create a private cause of action under the Economic Espionage Act (EEA). A copy of the bills can be found at https://beta.congress.gov/113/bills/s2267/BILLS-113s2267is.pdf (DTSA) and http://holding.house.gov/sites/holding.house.gov/files/documents/TSPA%20-%20HOLDNC_018_xml.pdf (TSPA).
While the signatories acknowledge “the need to increase protection both domestically and internationally against domestic and foreign cyber-espionage,” as discussed in the letter, we urge the Acts’ rejection for five reasons:
- Effective and uniform state law already exists.
- The Acts will damage trade secret law and jurisprudence by weakening uniformity while simultaneously creating parallel, redundant and/or damaging law.
- The Acts are imbalanced and could be used for anti-competitive purposes.
- The Acts increase the risk of accidental disclosure of trade secrets.
- The Acts have potential ancillary negative impacts on access to information, collaboration among businesses and mobility of labor.