Martin & Kent, L.L.C. Martin & Kent, L.L.C.


Trade secrets and criminal law

In July 2016, the U.S. Court of Appeals for the 9th Circuit confirmed that the Computer Fraud and Abuse Act and the Economic Espionage Act protect trade secrets from being divulged by former employees in Illinois and around the country. These federal laws allow employers to protect trade secrets through both criminal and civil means.

The case has furthered the trends of the criminalization of trade secret theft at the federal level. The trend appeared in 2013 with the Department of Justice announcement that it would focus on prosecuting trade secret theft cases. The DOJ has exhibited an increased interest in business crime accusations, resulting in more criminal convictions for these types of crimes since 2013.

The case may impact the application of trade secret law in a variety of ways. Critics have asserted that the 9th Circuit acted beyond its authority to expand employers' use policies beyond their original anti-hacking purpose. A simple act of password sharing could now hold a much harsher penalty as a result. Another criticism is that defendants are not given adequate notice of the fact that their employers' computer use policies are used in a criminal conviction context.

The laws governing computer use and trade secrets have become significantly stricter in recent years, resulting in harsher standards applied to those accused of a business crime. A criminal law attorney may be able to provide guidance when it comes to establishing a strong defense against accusations of a business crime. For example, an attorney may build a defense on the grounds that the confidentiality of the information had already been lost through previous disclosures.

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