Elon Law Professor David Levine kicked off Elon’s Technology and Law Speakers Series on Sept. 2 with a discussion featuring insights about evolving federal legislation designed to tackle cyber-espionage but threatening to deteriorate trade secrecy law.
Developed through the collaboration of scholars across Elon University, the Technology and Law Speaker Series includes eleven discussions about current research projects by Elon professors across the 2015-2016 academic year. Members of the Elon University community are invited and encouraged to attend.
Levine’s presentation included discussion about the regulation of driverless cars, drones and other robotics, and featured insights about cybersecurity and trade secrecy. Excerpts from a recent letter to Congress on this topic, co-authored by Levine and law scholar Sharon K. Sandeen are excerpted below as an Elon Law Now commentary:
“We write to express our continued concerns about the Defend Trade Secrets Act (‘DTSA’) and our willingness to assist you in determining how best to improve enforcement of legitimate trade secret rights. In August 2014, 31 academics signed a letter raising many concerns with similar legislation then pending in the House and Senate.
“In the July 29, 2015 press release announcing the new DTSA, the sponsors again identify the harm that they seek to address, namely, that ‘trade secrets can be stolen with a few keystrokes, and increasingly, they are stolen at the direction of a foreign government or for the benefit of a foreign competitor.’
“Indeed, these are the general arguments that were proffered in support of last year’s legislation. In response, the undersigned addressed these assertions in detail in a January 2015 article published in the Washington and Lee Law Review Online, titled ‘Here Come the Trade Secret Trolls‘ [in which] we concluded that the DTSA does ‘not address, much less solve,’ the exact cyberespionage harm quoted above. Instead, we explained, the DTSA has many downsides, and is ‘most likely to spawn a new intellectual property predator: the heretofore unknown ‘trade secret troll,’ an alleged trade secret owning entity that uses broad trade secret law to exact rents via dubious threats of litigation directed at unsuspecting defendants.’
“Unfortunately, the new DTSA appears to simply combine many of the provisions of the two pieces of legislation that were introduced in 2014 (S. 2267 and H.R. 5233). As a result, it addresses few of the concerns raised in the January 2015 article and the August 2014 letter. Moreover, the sponsors have failed to explain how the DTSA improves existing trade secret law, nor how it will specifically address the harms that it purports to mitigate. Thus, the August 2014 letter and January 2015 article remain highly relevant to an analysis of the DTSA’s benefits and drawbacks.
“As Congress takes on the purported problem of patent assertion entities (also known as ‘trolls;’ an issue on which we take no position), it should be aware of the very real possibility that the DTSA could create an entirely new form of troll. This new ‘trade secret troll’ could cause significant harm to weaker and smaller businesses, as well as start-ups and fledgling entrepreneurs. Thus, we urge Congress to abandon the DTSA.”
Read the full letter to Congress by Levine and Sandeen here.
More information about Elon Law Professor David S. Levine is available here.