As previously reported on TSW, the road to federal right of action for trade secrets misappropriation has been a long one. In the absence of a federal trade secrets law, the Economic Espionage Act (“EEA”) and various state versions of the Uniform Trade Secret Act (“UTSA”) have filled the gap with an uneven patchwork of legislation and no civil remedies at the federal level. This might soon change. On January 27, 2016 the U.S. Senate Committee on the Judiciary passed the Defend Trade Secrets Act of 2016 (“DTSA”), sponsored by Sens. Orrin Hatch, R-Utah, and Chris Coons, D-Del. The legislation was also backed by a deep pool of companies ranging from Silicon Valley startups to corporate giants concerned about the hundreds of billions of dollars reportedly lost annually as a result of trade secret theft. READ MORE
Posts by: Editorial Board
If you’re a Star Wars fan, loyalty probably means waiting ten years for “The Force Awakens.” (Or even longer if you prefer not to count Episodes I-III). For an employee looking to leave her current employer, however, loyalty can take on a different meaning. An employee, while still employed, owes an “undivided duty of loyalty” to her employer. READ MORE
Before you include a Computer Fraud and Abuse Act (“CFAA”) claim in a trade secret case, consider carefully: was the data acquired through “unauthorized access” or was it just misused by the defendants? If it was properly accessed (but later misused), your CFAA claim, and the federal question jurisdiction that comes with it, is in jeopardy. In SunPower Corp. v. SunEdison, Inc., Judge Orrick of the Northern District of California recently dismissed the plaintiff’s CFAA claim because the plaintiff failed to allege that the data was accessed without authorization, only that it was later misused. Because the CFAA claim provided the basis for federal jurisdiction, Judge Orrick indicated that he would dismiss the entire case and not exercise pendent jurisdiction over the remaining thirteen state claims if the CFAA claim could not be properly amended. READ MORE
We’re excited to announce Orrick’s new sister blog, Trust Anchor!
Trust Anchor highlights current topics in cybersecurity and data privacy, such as recent cases, legislative and regulatory developments, emerging standards, risk management strategies, and insurance coverage. It’s not just news. Instead, it aims to review new developments and offer actionable privacy and cybersecurity intel and strategies. READ MORE
On July 28, broad bipartisan support ushered the “Defend Trade Secrets Act of 2015” onto the floor of both the House and Senate. This DTSA treads the well-worn path of many similar (and, to date, hapless) bills that fruitlessly preceded it. TSW has exhaustively covered prior attempts, aptly titling our first post “Pols Gone Wild: Congress Discovers Trade Secret Theft and Cybersecurity Are Problems; We Sort Through the Explosion of Legislation”—chart and all. READ MORE
In a stunning victory for the former Goldman Sachs programmer, New York State Justice Daniel Conviser threw out Sergey Aleynikov’s jury conviction on state law charges that he stole intellectual property from Goldman. Trade Secrets Watch has extensively covered this story, most recently reporting the start of Aleynikov’s new trial, but missing out on a (later-dismissed) juror’s tale of an errant avocado. READ MORE
As post-Snowden America well knows, for some years now the National Security Agency (NSA) has been collecting bulk telephone metadata under the authority of Section 215 of the PATRIOT Act and aggregating it into data banks subject to government query. Under the “business records” provision of this law, the NSA has been collecting all kinds of information about the numbers you dial, how often you dial them, and how long your conversations are—and it’s been doing so for years. READ MORE
Declaring cybercrime a “national emergency,” President Obama today empowered Treasury to freeze assets that are the fruits of cybercrime, according to an Executive Order issued this afternoon. The agency can block money or property in the United States or in the control of any United States person determined to have engaged in “cyber-enabled activities” originating or directed from outside the United States. Targeted activities include harming computer networks in critical infrastructure sectors; significantly disrupting a computer network; or causing significant misappropriation of trade secrets and other protected information. The EO also enables seizure of money or property of any persons involved in misappropriating trade secrets by “cyber-enabled means” that impact the national security, foreign policy, or economic health or financial stability of the United States.
TSW is tracking the EO and will report further developments.
This marks the inaugural “Five Minutes With” feature that Trade Secrets Watch will run occasionally. These will be question-and-answers with notable figures in the trade secrets world.
TSW got a chance to sit down with UC Hastings College of the Law professor and Liberty, Security & Technology Clinic founder Ahmed Ghappour. He had a lot to say about trade secrets, cybersecurity, and encrypting “all the things.”
TSW: Ahmed, TSW is dying to know what you’ve been up to lately in the world of economic espionage. What’s the inside scoop? READ MORE
Orrick’s Chris Ottenweller and Derek Knerr recently took to Law360 to review recent cases involving theories of third-party liability for trade secret misappropriation. New employees are one obvious source of potential liability if they bring to the job information obtained from their prior employer. But in recent years companies have also increasingly faced suits based on relationships with contractors and vendors. Chris and Derek offer some practical considerations to help companies mitigate potential liability in the first place.