Pols Gone Wild: Congress Discovers Trade Secret Theft And Cybersecurity Are Problems; We Sort Through The Explosion Of Legislation

Trade secret theft and cybersecurity are hot topics in Congress these days, spawning legislative initiatives left and right.  Amid this flurry of legislation, it’s hard to keep all the bills straight.  Trade Secrets Watch took a look at the legislation currently under review, and put together this primer:

Bill Sponsors What’s It About? Status
Cyber Economic Espionage Accountability Act Rep. Mike Rogers
(R-Mich.)Rep. Tim Ryan
(D-Ohio)
  • Introduced June 6, 2013, the bill broadly aims to secure the United States against cyber attacks sponsored by foreign governments.
  • The bill calls for the President to identify foreign government officials whom the President determines, “based on credible information,” are responsible for cyber theft of United States intellectual property.
  • The bill makes the identified persons ineligible to be admitted to the United States.
  • The bill directs the Secretary of State and Secretary of Homeland Security to revoke the visa of any such identified person.
  • The bill imposes financial sanctions, enabling the President to freeze property transactions by the identified individuals.
Referred to the Foreign Affairs, Judiciary and Financial Services Committees.
Deter Cyber Theft Act Sen. Carl Levin
(D-Mich.)et al.
  • Introduced May 7, 2013, the bill would establish a “watch list” and “priority watch list” of countries that facilitate or engage in cyber theft of trade secrets from the United States.
  • As we previously reported, the bill would also require the President to direct U.S. Customs and Border Protection to bar imports from foreign countries on the watch list.
Referred to the Committee on Finance.
Strengthening and Enhancing Cybersecurity by Using Research, Education, Information, and Technology Act (“SECURE IT”) Rep. Marsha Blackburn
(R-Tenn.)
  • Introduced April 10, 2013, SECURE IT seeks to, among other things, facilitate the sharing of cyber threat information and create new deterrents for cyber criminals.
  • For instance, the act creates a limited exemption from antitrust laws for the sharing of cyber threat information between private entities.  It further provides that an entity may disclose cyber threat information to any entity to assist with the investigation of threats to cybersecurity.  (This portion of the bill might face the same opposition as CISPA — see below.)
  • SECURE IT further requires that federal agencies be informed of significant cyber incidents involving their federal information systems and that agencies adopt technologies to detect and remediate cyber intrusions.
  • The bill aims to amend certain provisions of the Computer Fraud and Abuse Act to include new criminal penalties for “aggravated damage” to certain “critical infrastructure” computers, such as those that control water supplies, electrical power delivery, and financial transactions.
Referred to the House Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.
Cyber Intelligence Sharing and Protection Act (“CISPA”) Rep. Mike Rogers
(R-Mich.)et al.
  • First introduced in the House on November 30, 2011, and most recently re-introduced on February 13, 2013, the act aims to permit information sharing about possible cybersecurity threats among government agencies and private companies.
  • CISPA has divided the House and Senate and has faced opposition by privacy and civil liberties organizations.
The bill passed the House and was referred to the Senate but has not shown signs of advancement.  We reported earlier that the Senate would not be taking up the bill and that President Obama threatened to veto the bill because of privacy concerns.

What trends can we discern from these bills?  Foreign cyber espionage constitutes the target du jour.  The current bills aim to attack it from a broad, national perspective (e.g., à la Deter Cyber Theft Act), and on an individual basis (à la the Cyber Economic Espionage Accountability Act).  And financial deterrence, in the form of importation bans and freezing of assets, creates the backbone of the proposed civil sanctions.

Still, conspicuously missing from these measures is an effort to harmonize domestic trade secret law under a comprehensive and uniform federal standard.  Senator Christopher Coons (D-Del.) co-sponsored the now-defunct Protecting American Trade Secrets and Innovation Act of 2012 (“PATSIA”), which would have provided federal civil jurisdiction for the theft of trade secrets.  The bill died with the last Congress, but Coons suggested he will reintroduce the bill during the current congressional session.  With intellectual property theft taking the spotlight on Capitol Hill, and with the Administration conducting a review of federal trade secret legislation, PATSIA 2.0, or hopefully a more sweeping federal civil Trade Secret Act, might be primed for success this time around.

 

Topics:  CISPA, Cyber Espionage, Cybersecurity, Economic Espionage Act, Theft of Trade Secrets Clarification Act, Trade Secrets

Published In: Criminal Law Updates, Intellectual Property Updates, International Trade Updates, Privacy Updates, Science, Computers & Technology Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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