Twenty years ago, Congress passed the Economic Espionage Act of 1996 (“EEA”), the first major federal statute to address trade secret misappropriation. The EEA criminalized trade secret misappropriation and authorized broad domestic and international enforcement measures against trade secret misappropriation. The statute was ostensibly a response to the growing instances of trade secret misappropriation reported by U.S. companies who felt that the patchwork of state law trade secret protections and remedies was insufficient to deter, punish, and compensate for the loss of trade secrets. At the time of its passage, the EEA was lauded by the business community, but it was heavily criticized by scholars who worried that the statute was too broad and too protectionist. In the intervening years, the business sector renewed its complaints about the insufficiency of U.S. trade secret laws, and scholars continued to express skepticism about using criminal law to enforce trade secret policy. By July 2015, a bipartisan group of legislators introduced identical bills in the House and Senate proposing a new federal trade secrets statute, the Defend Trade Secrets Act (“DTSA”). This statute creates a federal private right of action under the EEA for trade secret misappropriation and economic espionage, and it authorizes a variety of remedies including injunctions, damages, and seizure of property. President Obama signed the DTSA into law on May 11, 2016.
In 2003, I published a student note examining the EEA and arguing that the broad statutory language and potential for extraterritorial enforcement created problems for the United States given our commitments to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). Given the recent legislative efforts to expand the EEA to include private enforcement, it is time to revisit and update research on the EEA. This Article examines the new problems and challenges private enforcement of the EEA might present. In particular, this Article considers whether the problems of extraterritorial criminal enforcement extend to the civil context.
