Economic Espionage Act Update

Recognizing the need to crack down on misappropriation of trade secrets, the Department of Justice (DOJ) has stepped up its enforcement of the Economic Espionage Act, among other statutes. See the DOJ’s IP Task Force announcement and a post at my prior law firm’s Trade Secret / Noncompete Blog.

Presumably motivated by the same concerns, several US Senators are now seeking to increase the penalties for violations of the Economic Espionage Act. A nice summary by a law student at American University, Washington College of Law appears here.

The text of the bill is as follows:

A BILL

To increase the penalties for economic espionage.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the `Economic Espionage Penalty Enhancement Act’.

SEC. 2. AMENDMENT TO TITLE 18.

    Section 1831(a) of title 18, United States Code, is amended by striking `15 years’ and inserting `20 years’.

SEC. 3. DIRECTIVE TO SENTENCING COMMISSION.

    Pursuant to its authority under section 994(p) of title 28, United States Code, the United States Sentencing Commission shall–
    (1) review its guidelines and policy relating to a two-level enhancement for economic espionage; and
    (2) as a part of such review consider amending such guidelines to–

(A) apply the two-level enhancement to the simple misappropriation of a trade secret;

(B) apply an additional two-level enhancement if the defendant transmits or attempts to transmit the stolen trade secret outside of the United States and an additional three-level enhancement if the defendant instead commits economic espionage (i.e., he/she knew or intended that the offense would benefit a foreign government, foreign instrumentality, or foreign agent); and

(C) provide when a defendant transmits trade secrets outside of the United States or commits economic espionage, that the defendant should face a minimum offense level.

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