Summer has arrived. The Hollywood blockbusters are here. New animated features hit the big screens this week. Superman is flying once more. Sure, if the movies are your cup of tea, then summer is your annual thirst quencher. However if you’re looking for drama, you need only scan the internet to find your daily dose of serious corporate espionage and the criminal theft of trade secrets from American corporations.
Just yesterday the San Francisco Chronicle ran a story of a scientist working on solar cell technology who pled guilty to several counts of wire fraud in an indictment claiming he stole trade secrets from his employer “and tried to take them to a competitor in China.” The prosecutors in the case “estimate the total loss from the theft of trade secrets at nearly $22.7 million.” The Telegraph – a British newspaper – reported this week that cyber espionage is rampant in the UK with “foreign hackers” secretly working in some companies for up to two years “discreetly stealing intellectual property.” American newspapers recently published articles that our government systems are under constant attack not only from rogue hackers but also from foreign governments utilizing sophisticated programs and systems in an effort to steal American secrets and military information. Same thing for recent stories of Chinese manufacturer Sinovel and two if its executives, recently indicted for alleged theft of wind turbine trade secrets. Alleged financial loss to the owner of the trade secrets: approximately $800 million according to SecurityInfoWatch.com.
The problem is rampant and unlikely to go away. Nor is this something new. Corporate espionage likely began soon after the first business incorporated. Of course, victimized businesses take little comfort knowing that others victims also exist. So what can your company do to avoid, eliminate or minimize this potential loss? First line of defense, of course, is education. Educate the people in charge of monitoring the transmission of technical data on the best means to detect the “discreet stealing.” Depending on the value of the intellectual property (and the potential loss to your business if a competitor was to receive the trade secret information without a license or without compensation), the potential losses could justify the investment in employees whose role is to oversee the data transferred to and from your company’s system.
As most of you who read this post already know, Florida employment is at will. While termination for a discriminatory purpose is unlawful, termination for violation of company policies (or termination for violation of State or federal law) is common. However, as these events (and the dozens of other recently reported events) indicate, the most difficult task for American companies lies in screening employees so as to minimize the possibility of trade secret theft, while at the same time ensuring that all potential employees are given an equal opportunity to apply for a position for which they are potentially qualified.
If your company faces a patient, technically savvy and stealthy employee, like the ones described who steal trade secrets with stealth for two years before they are discovered, a well-written policy is not likely to act as a significant deterrent. On the other hand, Florida law specifically allows employers to create written policies regarding the protection of its trade secrets and to enforce those policies against its employees as appropriate. In most circumstances, employee education (and continuing acknowledgement) of the employer’s policies, in concert with a method for your business to monitor activity and to “police” itself, can deter most of the individuals who might consider trade secret theft.