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1122

Introduction to the Economic Espionage Act

Congress, recognizing the importance of the protection of intellectual property and trade secrets to the economic health and security of the United States, enacted the Economic Espionage Act of 1996, Pub.L. 104-294, 110 Stat. 3489 (October 11, 1996) (hereinafter the "EEA") to address the growing problem of theft of trade secrets. The EEA contains two separate provisions that criminalize the theft or misappropriation of trade secrets. The first provision, codified at 18 U.S.C. § 1831, is directed towards foreign economic espionage and requires that the theft of the trade secret be done to benefit a foreign government, instrumentality or agent. The second provision makes criminal the more common commercial theft of trade secrets, regardless of who benefits. 18 U.S.C. § 1832.

There are a number of important features to the EEA, including a provision for the criminal forfeiture of any property or proceeds derived from a violation of the EEA. 18 U.S.C. § 1834. The EEA also permits the Attorney General to institute civil enforcement actions and obtain appropriate injunctive relief for violations. 18 U.S.C. § 1836. Further, because of the recognized difficulty of maintaining the secrecy of a trade secret during litigation, the EEA requires that courts take actions, as necessary, to preserve the confidentiality of the trade secret. 18 U.S.C. § 1835. The EEA also covers conduct occurring outside the United States where the offender is a citizen or permanent resident alien of the United States, or an act in furtherance of the offense was committed in the United States. 18 U.S.C. § 1837.

NOTE: Prior to the passage of the EEA, the Attorney General assured Congress in writing that for a period of five years, the Department of Justice would require that all prosecutions brought under the EEA must first be approved by the Attorney General, the Deputy Attorney General or the Assistant Attorney General of the Criminal Division. (See October 1, 1996 letter from Attorney General Janet Reno to Chairman Orrin Hatch, Criminal Resource Manual at 1123). This requirement expired on October 11, 2001. Subsequently, the Attorney General renewed the prior requirement for initiating prosecutions under 18 U.S.C. § 1831. Approval for § 1831 cases should be obtained from the Assistant Attorney General for the Criminal Division, through the Counterespionage Section. The approval requirement was not extended for cases under 18 U.S.C. § 1832, however, prosecutors are strongly urged to consult with the Computer Crime and Intellectual Property Section prior to filing charges under § 1832. See USAM 9-59.100, 110.

[updated October 2004] [cited in USAM 9-59.100]