Can You Be Prosecuted for the Theft of Trade Secrets?

Absolutely.  Since the 1990s, the Economic Espionage Act has criminalized a broad range of misconduct related to trade secrets.  Generally, a trade secret is any piece of information (1) that is the subject of reasonable measures to keep it secret, and (2) that derives independent economic value from not being generally known or readily ascertainable.

Someone commits trade secret theft when:

• He or she steals a trade secret, or otherwise obtains, destroys, copies or conveys the trade secret without the authorization of the trade secret’s owner.
• The individual intended to convert the trade secret to the economic benefit of someone other than the owner.
• And the individual knew that the owner of the trade secret would be injured.

The trade secret must also be related to, or included in, a product that is produced or placed in interstate or foreign commerce.  Trade secret theft is punishable by up to 10 years’ imprisonment and a fine. 

In addition to trade secret theft under the Economic Espionage Act, conduct amounting to trade secret theft also may be prosecuted under numerous other statutes, including the wire and mail fraud statutes.  Therefore, even if misconduct does not technically violate the Economic Espionage Act, an individual may nonetheless be prosecuted under another criminal statute.

The Department of Justice has, in recent years, made prosecuting trade secret theft a top priority.  In February 2020, the FBI Director commented that the FBI then had over 1,000 open investigations into alleged trade secret misappropriation and other forms of economic espionage.

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