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CRM 1000-1499

1126. 18 U.S.C. § 1831 Element Two—The Defendant Knew the Information Was Proprietary

Section 1831 contains two distinct mental state requirements. The first of these is that the defendant's misappropriation was done "knowingly." Thus, the government must show that the defendant knew or had a firm belief that the information he or she was taking was proprietary. 142 Cong. Rec. at S12213 (daily ed. Oct. 2, 1996). Generally, under criminal statutes covering the theft of tangible property, the government must prove that the thief knew that the object he stole was property that he had no lawful right to convert to his personal use. Applying this same principle to this statute, in order for the defendant to be convicted, the government must establish that the defendant was aware or substantially certain that he was misappropriating a trade secret. Thus, a person who takes a trade secret because of ignorance, mistake or accident cannot be prosecuted under § 1831. The legislative history goes on to suggest that:

[t]his requirement should not prove to be a great barrier to legitimate and warranted prosecutions. Most companies go to considerable pains to protect their trade secrets. Documents are marked proprietary; security measures put in place; and employees often sign confidentiality agreements to ensure that the theft of intangible information is prohibited in the same way that the theft of physical items are protected.


[cited in Criminal Resource Manual 1131; JM 9-59.100]