The initial element of a criminal prosecution under § 1831 is that the defendant obtained, destroyed or conveyed information without the authorization of the owner. The type of acts which are prohibited are broadly defined and include traditional instances of theft, i.e., where the object of the 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 prohibited acts include copying, duplicating, sketching, drawing, photographing, replicating, transmitting, delivering, sending, mailing, communicating, or conveying. With these methods the original property never leaves the custody or control of the owner, but the unauthorized duplication or misappropriation may effectively destroy the value of what is left with the rightful owner. Through copying, information can be stolen without asportation, and the original object remains intact. It was the intent of Congress to ensure that the misappropriation of intangible information is prohibited in the same way that the 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. According to the legislative history, "authorization is the permission, approval, consent 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, where an employee has authorization from his employer to obtain a trade secret during the regular course of employment, he can still violate § 1831 if he "conveys" it without his employerþs permission.
[cited in Criminal Resource Manual 1130; JM 9-59.100]