NCJ Number
45015
Journal
American Criminal Law Review Volume: 14 Issue: 4 Dated: (SPRING 1977) Pages: 797-821
Date Published
1977
Length
25 pages
Annotation
TRADITIONAL CIVIL REMEDIES PERTAINING TO INDUSTRIAL ESPIONAGE ARE EXAMINED CRITICALLY, AND ISSUES IN THE DEVELOPMENT OF CRIMINAL SANCTIONS FOR THEFT OF TRADE SECRETS ARE CONSIDERED.
Abstract
GROWING CONCERN IN THE BUSINESS COMMUNITY OVER INDUSTRIAL ESPIONAGE IS REFLECTED IN INCREASING EXPENDITURES FOR SECURITY SERVICES AND EQUIPMENT. HOWEVER, THE DEVELOPMENT OF CORPORATE DEFENSES AGAINST TRADE SECRET THEFT HAS NOT BEEN PARALLELED BY LEGAL ADVANCES. CORPORATIONS REMAIN LARGELY DEPENDENT ON A 'PATCHWORK' OF CIVIL REMEDIES THAT REFLECT COMMERCIAL CRIMES OF THE PAST. THE LAW HAS YET TO CATCH UP WITH THE ADVENT OF THE COMPUTER AS 'HENCHMAN' IN TECHNOLOGICAL RAIDS ON TECHNOLOGY. THE MOST SIGNIFICANT LEGAL OBSTACLE TO EFFECTIVE PROTECTION OF TRADE SECRETS IS THE DISTINCTION BETWEEN TANGIBLE AND INTANGIBLE PROPERTY. THIS DISTINCTION MUST BE ABOLISHED IN TRADE SECRET LAW IN ORDER TO ELIMINATE KEY DEFENSES AVAILABLE TO LEGALLY ADROIT INDUSTRIAL SPIES. ANOTHER PROBLEM HAS BEEN THE FAILURE TO INCLUDE PROCEDURAL SAFEGUARDS AGAINST TRADE SECRET DISCLOSURE DURING CRIMINAL PROSECUTION. THE USE OF IN CAMERA OR EX PARTE HEARINGS, TAILORED TO MINIMIZE INFRINGEMENT OF THE DEFENDANT'S RIGHT TO A PUBLIC TRIAL, IS NECESSARY TO AVOID THE SITUATION IN WHICH A THEFT CONVICTION IS OBTAINED AT THE EXPENSE OF PUBLIC DISCLOSURE OF BUSINESS SECRETS. IT IS CONCLUDED THAT THE SOLUTION TO PROBLEMS OF TRADE SECRET PROTECTION LIES IN PRECISELY DRAFTED LEGISLATION RATHER THAN WITH THE JUDICIARY.