Espionage turns economic: Litigation as counter-espionage in the post-Soviet era

In the post-Cold War era, foreign economic espionage is a looming threat. The author examines in detail the litigation options for American corporations that fall victim to trade secret theft by a foreign government or agent. These options include a request that criminal prosecution be brought by the U.S. Justice Department under the recently enacted Economic Espionage Act of 1996. The corporation itself may file a civil suit for compensation based on the common laws of trade secrets or the Uniform Trade Secrets Act, as well as the federal Racketeer Influenced and Corrupt Organizations Act. Among the types of defendants who might be prosecuted or sued are foreign governments that steal or receive trade secrets, private individuals or companies that help a foreign government commit misappropriation, and private entities that knowingly receive the stolen information. Common “litigation shields” used by foreign governments include claims of sovereign immunity, act of state, and diplomatic immunity. Each of these doctrines is examined, and case precedents where they were upheld or found inapplicable are cited. Analyzing these precedents, the author concludes that economic espionage by foreign government agents for delivery to a commercial enterprise should not be held subject to immunity. © 1997 John Wiley & Sons, Inc.