Introduction | How
to Protect Your Business | Definitions
Statutes | FAQs | How
to Contact Us
Introduction
The
Cold War is not over, it has merely moved into a
new arena: the global marketplace. The FBI estimates that
every year billions of U.S. dollars are lost to foreign
competitors who deliberately target economic intelligence
in flourishing U.S. industries and technologies, and who cull intelligence out
of shelved technologies by exploiting open source
and classified information known as trade secrets. Foreign
competitors who criminally seek economic intelligence
generally operate in three ways to create their spy
networks:
1.
They aggressively target and recruit susceptible
people (often from the same national background)
working for U.S. companies and research institutions;
2. They
recruit people to locate economic intelligence though operations like
bribery, discreet theft, dumpster diving (in search of discarded trade
secrets), and wiretapping; and,
3. They
establish seemingly innocent business relationships between foreign
companies and U.S. industries to gather economic intelligence including classified
information.
In
an effort to safeguard our nation's economic
secrets, the Economic Espionage Act (EEA) was
signed into law on October 11, 1996.
How
to Protect Your Business from Espionage: 6
steps
1. Recognize
there is a real threat.
2.
Identify and valuate trade secrets.
3. Implement
a definable plan for safeguarding trade secrets.
4. Secure
physical trade secrets and limit access to trade
secrets.
5. Confine
intellectual knowledge.
6. Provide
ongoing security training to employees.
Definitions
Economic
Espionage is (1) whoever knowingly performs targeting or acquisition
of trade secrets to (2) knowingly benefit any
foreign government, foreign instrumentality,
or foreign agent. (Title18
U.S.C., Section 1831).
Trade
secrets are all forms and types of financial, business, scientific,
technical, economic or engineering information,
including patterns, plans, compilations, program
devices, formulas, designs, prototypes, methods,
techniques, processes, procedures, programs,
or codes whether tangible or intangible, and
whether or how stored, compiled, or memorialized
physically, electronically, graphically, photographically
or in writing, which the owner has taken reasonable
measures to protect; and has an independent
economic value. "Trade secrets" are commonly
called classified proprietary information,
economic policy information,
trade information, proprietary technology,
or critical technology.
Theft
of trade secrets occurs when someone (1) knowingly
performs targeting or acquisition of trade
secrets or intends to convert a trade secret
to (2) knowingly benefit anyone other than
the owner. Commonly referred to as Industrial Espionage. (Title 18 U.S.C., SECTION 1832).
A Foreign
Agent is any officer, employee, proxy,
servant, delegate, or representative of a foreign
government.
A Foreign
Instrumentality is defined as: (1) any
agency, bureau, ministry, component, institution,
or association; (2) any legal commercial or
business organization, corporation, firm, or
entity; and, (3) substantially owned, controlled,
sponsored, commanded, managed or dominated
by a foreign government.
Statutory
authority: The Economic Espionage Act (EEA)
of 1996
TERRITORIAL
LIMITS: EEA protects against theft that occurs either
(1) in the United
States,
or (2) outside the United
States and (3) an act
in furtherance of the offense was committed in the United States, or (4) the violator is a US person or organization.
CRIMINAL
PENALTIES
Title
18 U.S.C., Section 1831 Economic Espionage
CRIMINAL
FORFEITURE: The court requires that the violator
forfeit to the United
States any
(1) property constituting,
or derived from any proceeds the person obtained
directly or indirectly, as the result of the
violation, or (2) property used, or intended
to be used, in any manner or part, to commit
or facilitate the commission of the violation.
CIVIL
PROCEEDINGS: In a civil action the Attorney
General may obtain appropriate injunctive relief
to prevent the offense. The District Courts
of the United States have exclusive original
jurisdiction of civil actions.
FAQs
What
are some methods of targeting or acquiring
trade secrets?
1.
Steal, conceal, or carry away by fraud, artifice,
or deception;
2.
Copy, duplicate, sketch, draw, photograph, download, upload,
alter, destroy, photocopy, replicate, transmit, deliver,
send, mail, communicate, or convey; and,
3.
Receive, buy, or possess a trade secret, knowing
the same to have been stolen or appropriated, obtained,
or converted without authorization.
Does
the Economic Espionage Act of 1996 apply if
the offender is a foreign person?
Yes. The
Act states that (1) whoever knowingly performs targeting
or acquisition of trade secrets to (2) knowingly
benefit any one other than the owner. Other elements
will apply for prosecution.
Does
the Economic Espionage Act of 1996 apply if
it occurs outside the United States?
Yes. However,
the violator must be (1) a US person or organization;
or (2) an act in furtherance of the offense was committed
in the United States.
Are
there other statutes that can apply if trade
secrets are not classified and therefore cannot
be prosecuted under the Economic Espionage
Act of 1996 Title 18 U.S.C. Section 1831 and
1832?
Yes. The
following is a list of violations that may apply:
Mail Fraud, Wire Fraud, Interstate Transportation
of Stolen property, Export Control, and Intellectual
Property Rights. Contact your local FBI for further
assistance.
Is
the FBI proactive in its approach to economic
espionage?
Yes. FBI
Director Robert Mueller has designated espionage
as the FBI's number two priority - second only to
terrorism. The Economic Espionage Unit is dedicated
to countering the economic espionage threat to include
developing training and outreach materials; participating
in conferences; visiting private industry; working
with the law enforcement and intelligence community
on requirement issues; and providing specific classified
and unclassified presentations.
How
to Contact Us
To
report violations, obtain additional information,
or schedule a presentation regarding Economic Espionage,
contact the Economic Espionage Unit at 202/324-6930.