	Introduction1

U.S. corporations face a "growing and persistent threat" by individuals, rival companies, and foreign governments that seek to steal some of their most valuable intangible assets—their trade secrets. This expansive standard means that trade secret protection could be available to a wide range of proprietary information and technologies that companies rely on to give them an economic advantage over their competitors, including customer lists, methods of production, marketing strategies, pricing information, and chemical formulae. In contrast to the other three types of intellectual property that are governed primarily by federal law, trade secrets are primarily governed under state law, and thus owners of trade secrets have more limited legal recourse when their rights are violated by others. State law provides trade secret owners with the power to file civil lawsuits against those who misappropriate trade secrets. Economic Espionage

The EEA's "economic espionage" provision, 18 U.S.C. Section 1831, punishes those who misappropriate, or attempt or conspire to misappropriate, trade secrets with the intent or knowledge that the offense will benefit a foreign government, instrumentality, or agent. Theft of Trade Secrets

The EEA's "theft of trade secrets" prohibition, 18 U.S.C. Section 1832, is of more general application. The principal elements of an EEA claim for theft of trade secrets are (1) the intentional and/or knowing theft, appropriation, destruction, alteration, or duplication of (2) a trade secret related to a product or service used in or intended for use in interstate or foreign commerce (3) with intent to convert the trade secret and (4) intent or knowledge that such action will injure the owner. At the federal level, the Economic Espionage Unit located within the Federal Bureau of Investigation's (FBI's) Counterintelligence Division has primary responsibility for investigating offenses under the EEA. The U.S. Department of Justice (DOJ) and its U.S. Attorneys have the power to prosecute cases involving corporate and state-sponsored trade secret theft. borders." In Support of a Federal Civil Cause of Action for Trade Secret Theft

Some observers have urged Congress to adopt a comprehensive, federal trade secret law in order to promote uniformity in trade secret law throughout the United States. They argue that: "(1) it will not address the cyberespionage problem that is most often used to justify the adoption of a federal trade secret law; (2) a federal trade secret law is not needed to protect U.S. trade secrets because there is already a robust set of state laws for the protection of such secrets; and (3) there are significant costs to creating a federal civil cause of action for trade secret misappropriation." Legislation in the 114th Congress: The Defend Trade Secrets Act

Two bills have been introduced in the 114 th Congress related to trade secret misappropriation, S. 1890 and H.R. On January 28, 2016, the Senate Judiciary Committee, by a unanimous voice vote, reported S. 1890 with an amendment in the nature of a substitute. The Senate passed S. 1890 by a vote of 87-0 on April 4, 2016. On April 20, the House Judiciary Committee unanimously approved S. 1890 by voice vote. The DTSA would establish this new private right by adding a subsection entitled "private civil actions" to the provision of the EEA that currently authorizes the Attorney General to bring a civil action to obtain "appropriate injunctive relief" against any violation of the EEA, codified at 18 U.S.C.
A trade secret is confidential, commercially valuable information that provides a company with a competitive advantage, such as customer lists, methods of production, marketing strategies, pricing information, and chemical formulae. (Well-known examples of trade secrets include the formula for Coca-Cola, the recipe for Kentucky Fried Chicken, and the algorithm used by Google's search engine.) To succeed in the global marketplace, U.S. firms depend upon their trade secrets, which increasingly are becoming their most valuable intangible assets.
However, U.S. companies annually suffer billions of dollars in losses due to the theft of their trade secrets by employees, corporate competitors, and even foreign governments. Stealing trade secrets has increasingly involved the use of cyberspace, advanced computer technologies, and mobile communication devices, thus making the theft relatively anonymous and difficult to detect. The Chinese and Russian governments have been particularly active and persistent perpetrators of economic espionage with respect to U.S. trade secrets and proprietary information.
In contrast to other types of intellectual property (trademarks, patents, and copyrights) that are governed primarily by federal law, trade secret protection is primarily a matter of state law. Thus, trade secret owners have more limited legal recourse when their rights are violated. State law provides trade secret owners with the power to file civil lawsuits against misappropriators. A federal criminal statute, the Economic Espionage Act (EEA), allows U.S. Attorneys to prosecute anyone who engages in "economic espionage" or the "theft of trade secrets." The EEA's "economic espionage" provision punishes those who misappropriate trade secrets with the intent or knowledge that the offense will benefit a foreign government, instrumentality, or agent. The EEA's "theft of trade secrets" prohibition is of more general application, involving the intentional theft of a trade secret related to a product or service used in or intended for use in interstate or foreign commerce, with the intent or knowledge that such action will injure the trade secret owner. In addition to criminal enforcement of the statute, the EEA authorizes the Attorney General to bring a civil action to obtain injunctive relief against any violation of the EEA.
However, because the U.S. Department of Justice and its Federal Bureau of Investigation have limited investigative and prosecutorial resources, as well as competing enforcement priorities, some observers assert that the federal government cannot adequately protect U.S. trade secrets from domestic and foreign threats. They have urged Congress to adopt a comprehensive, federal trade secret law in order to promote uniformity in trade secret law throughout the United States and to more effectively deal with trade secret theft that crosses state and international borders (a challenging problem for state courts to address). Among other things, they support the establishment of a federal civil cause of action for trade secret misappropriation, to allow U.S. companies to obtain monetary and injunctive relief when their trade secret assets are stolen.
In the 114th Congress, the Defend Trade Secrets Act (DTSA) (H.R. 3326 and S. 1890) has been introduced that would create a federal private right of action for trade secret misappropriation. S. 1890 was reported out of the Senate Judiciary Committee in late January 2016 with an amendment in the nature of a substitute. On April 4, 2016, the Senate passed S. 1890 by a vote of 87-0. On April 20, the House Judiciary Committee unanimously approved S. 1890.