NCJ Number
115078
Journal
American Criminal Law Review Volume: 26 Issue: 1 Dated: (Summer 1988) Pages: 121-154
Date Published
1988
Length
34 pages
Annotation
The Supreme Court decision in Carpenter v. United States rests on an analogy that broadly characterizes the unauthorized communication of trade secrets as equivalent to the crime of embezzlement and is inconsistent with most statutory law dealing with the subject of trade secrets.
Abstract
In the Carpenter decision, the Court held unanimously that an employee who leaks to third parties confidential business information belonging to his employer embezzles property in violation of the Federal mail and wire fraud statutes, even though the employer suffers no apparent economic injury as a result. This view of confidential information as a form of property is historically unsound, however. In addition, it could trivialize the Court's decision only months earlier in McNally v. United States, which clearly sought to cut back on the rapid growth of the mail and wire fraud statutes. More important, the logic of Carpenter could significantly change the relationship between employers and employees by limiting employee mobility and increasing employers' social control over employees. Recent experience with insider trading and the criminal law's repsonse is instructive in examining the issue of overcriminalization of some kinds of behavior. Although persuasive arguments exist on both sides of the issues, it would be desirable to limit the further expansion of the Carpenter theory of liability and to subject some forms of misconduct to civil rather than criminal sanctions. 104 references.