Trade Secrecy as an Instrument of National Security? Rethinking the Foundations of Economic Espionage

Since its inception, the Economic Espionage Act has been touted as a way to advance U.S. national security interests. Specifically, proponents in Congress and law enforcement and intelligence officials since then have argued that economic espionage harms national security by undermining U.S. competitiveness and technological advantage. The domains of national security and trade secrecy, however, have conflicting and irreconcilable structures for protecting information. The notion that United States law enforcement and intelligence agencies can effectively address economic espionage without altering the basic contours of trade secret protection is misguided. These agencies rarely have access to firm-level information about threats to economically valuable information, but the firms that own trade secrets lack the perspective that might allow them to identify and defend against state-sponsored threats. Using diplomatic means to gain a better understanding of how other nations fund scientific and technical research development offers a more promising means of reducing the incentives and cover for economic espionage than does the current strategy of attempting to make incompatible legal paradigms work together.