When the FBI Comes Calling…®
INTELLECTUAL PROPERTY
According to Interpol, "Intellectual property … crime is the generic term for a wide range of counterfeiting and piracy offences." Interpol, Intellectual Property Crime, available here (last visited June 10, 2005). Such offenses include trademark, patent and copyright infringement, which have risen dramatically over the past decade, in part due to the "ready availability of modern technology to counterfeiters, who systematically use it to infringe trademarks and breach copyrights. Counterfeiting is so widespread that few legitimately manufactured goods are not copied in one form or another and the rights of the owners infringed." Id. Interpol sees intellectual property crime in many was as organized crime due to its size, and as such it "provides national police forces in member countries and industries affected by counterfeiting with a central point of reference on the subject. It also facilitates and co-ordinates international enforcement action against transnational and organized criminals involved in IP crime." Id.
Economic Espionage
18 U.S.C. & 1831 (2005)
The Crime
It is a crime for a person—intending or knowing that the offense will benefit any foreign government, foreign instrumentality, or foreign agent— to knowingly
- steal, or—without authorization—appropriate, take, carry away, or conceal, or—by fraud, artifice, or deception—obtain a trade secret
- without authorization, copy, duplicate, sketch, draw, photograph, download, upload, alter, destroy, photocopy, replicate, transmit, deliver, send, mail, communicate, or convey a trade secret
- receive, buy, or possess a trade secret, knowing the same to have been stolen or appropriated, obtained, or converted without authorization, or
- attempt or conspire to commit any of those offenses
The Punishment
The punishment for a violation of section 1831 is a fine of up to $500,000 ($10,000,000 if done by an organization), imprisonment for up to 15 years, or both.
Case Law Interpreting Section 1831
The government does not need to prove that an actual trade secret was used during an investigation under section 1831 because a defendant's culpability for a charge of attempt depends only on "the circumstances as he believes them to be," not as they really are. United States v. Hsu, 155 F.3d 189, 203 (3d Cir. 1998).
18 U.S.C. & 1832 (2005).
The Crime
It is a crime for a person intending to convert a trade secret—that is related to or included in a product that is involved in interstate or foreign commerce—for the economic benefit of anyone other than the owner of the trade secret—and intending or knowing that the offense will injure any owner of the trade secret—to knowingly
- steal, or—without authorization—appropriate, take, carry away, or conceal, or—by fraud, artifice, or deception—obtains such information
- without authorization, copy, duplicate, sketch, draw, photograph, download, upload, alter, destroy, photocopy, replicate, transmit, deliver, send, mail, communicate, or convey such information
- receive, buy, or possess such information, knowing the same to have been stolen or appropriated, obtained, or converted without authorization, or
- attempt or conspire to commit any of those offenses
The Punishment
The punishment for a violation of section 1832 is a fine (up to $5,000,000 if done by an organization), imprisonment for not more than 10 years, or both.
Case Law Interpreting Section 1832
The government can satisfy its burden under section 1832(a)(4) by proving beyond a reasonable doubt that the defendant sought to acquire information which he or she believed was a trade secret, regardless of whether it actually qualified as such. Furthermore, the defendant has not arguable right to view the unredacted portion of the documents which arguably include trade secrets. United States v. Hsu, 155 F.3d 189, 203 (3d Cir. 1998).
A disgruntled employee's attempt to sell information critical to the aftermarket production of airplane parts constitutes a criminal attempt to sell trade secrets in violation of section 1832. United States v. Lange, 312 F.3d 263, 268-69 (7th Cir. 2002).