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University of Miami Law Review

Melanie Reid

Abstract

In 1996, Congress passed the Economic Espionage Act (EEA), 18 U.S.C. Sections 1831 and 1832, to help thwart attempts by foreign entities intent on stealing U.S. proprietary information and trade secrets. Despite the passage of the EEA almost twenty years ago, if recent statistics are to be believed, there is so much trade secret thievery going around that the United States finds itself in the midst of an epidemic of economic espionage. Currently, any and all U.S. technology that is vulnerable and profitable is being targeted. Unfortunately, existing remedies and enforcement have barely blunted the onslaught against the U.S. which faces, according to the IP Commission Report, a potential 300 billion dollar loss of raw innovation every year. To date, there have only been a handful of § 1831 convictions since the Act was passed. That is hardly a deterrence or something to send shudders down the backs of would-be industrial spies. Despite U.S. shortcomings, the rest of the world has not done any better.

This article explores the reasons behind the U.S. government’s two-pronged approach: preventing the thefts by educating and training private companies to improve security and safeguard their secrets, and reacting to acts of economic espionage by federally prosecuting offenders under the EEA, and why this approach is not succeeding. The U.S. approach has been weak for several reasons: (1) the EEA, specifically, 18 U.S.C. § 1831, has been difficult to prove; (2) the sentences under § 1831 have been minimal; (3) despite being educated on the pitfalls of lax cybersecurity and personnel controls, there is a lack of buy-in from private industry to cooperate with law enforcement and/or tighten office security measures to prevent IP theft; (4) the federal government has taken a relatively hands-off approach in assisting private enterprise; and (5) other countries do not assist in international investigations due to their own weak response or individual attitudes towards intellectual property theft or in some cases, are the same foreign countries involved in the theft. This article also examines how various countries are handling the economic espionage threat and how differences in cultural, historical, and nationalistic backgrounds as well as economic and political governance allow some countries to be unapologetic supporters of state-sponsored economic espionage. The overall global response to economic espionage is weak, and a stronger U.S. response is needed.

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