18 U.S.C. § 1831 Element OneThe Defendant
or, Without Authorization of the Owner, Obtained, Destroyed, or Conveyed
The initial element of a criminal prosecution under § 1831 is
the defendant obtained, destroyed or conveyed information without the
authorization of the owner. The type of acts which are prohibited are
defined and include traditional instances of theft, i.e., where the object
crime is physically removed from the owners possession, 18 U.S.C. §
1831(a)(1). However, less traditional methods of misappropriation and
destruction are also covered. Under 18 U.S.C. § 1831(a)(2) the
acts include copying, duplicating, sketching, drawing, photographing,
replicating, transmitting, delivering, sending, mailing, communicating, or
conveying. With these methods the original property never leaves the
control of the owner, but the unauthorized duplication or misappropriation
effectively destroy the value of what is left with the rightful owner.
copying, information can be stolen without asportation, and the original
remains intact. It was the intent of Congress to ensure that the
misappropriation of intangible information is prohibited in the same way
theft of physical items is prohibited.|
The government must prove that the defendant acted "without
authorization" from the owner. This refers to whether the defendant had the
consent of the owner to obtain, destroy or convey the trade secret.
to the legislative history, "authorization is the permission, approval,
or sanction of the owner" to obtain, destroy or convey the trade secret.
142 Cong. Rec. S12202, S12212 (daily ed. Oct. 2, 1996). Thus, for example,
an employee has authorization from his employer to obtain a trade secret
the regular course of employment, he can still violate § 1831 if he
it without his employer■s permission.
[cited in Criminal Resource Manual 1130; USAM 9-59.100]