According to the United States Department of Justice journal issue (2009), a trade secret refers to any kind of intellectual property which is basically a crucial component in the development of new ideas and may in other cases involve a set of already established material resource which has never been exposed publicly. There are two folds upon which trade secrets develop. The two discrete approaches are basically used for investigating offences as they commence to unfold. The first approach entails a thorough undercover investigation which is entirely probable in nature. In this scenario, the conduct of the criminal activity in hand is left to go on as undercover operation is run parallel to the planning of the fraud. In other scenarios, there may be collaborative individuals that act as witnesses to the case. In this case, the undercover investigators are determined to expose the level of the trade secret, the number of participants and their individual roles in planning and executing the concern. The best example of this kind of approach is the Coca-Cola company trade secrets criminal case whereby an FBI agent posed as a Pepsi agent and pretended to buy the product sample at an agreed price. The undercover investigation was running for sixty days after which the defendants were arrested and convicted of the crime. In another case, the FBI performed an undercover investigation that was aimed at selling of processes and formulas for an anti cancer drug Taxol. In the second approach, the investigation is left to run reactively while uncovering past data relating to trade secrets. For instance, a defendant stayed in the U.S. for three days while attending a conference, the state officials at the airport later were able to hold him with trade secrets on his laptop. This was long after the information had left the company. The security measure that are supposed to be put in place to prevent further incidents include tightening security personnel at the border so that specific agencies are mandated to perform searches for any suspect of trade secrets; during the court proceedings the attorney’s should be restricted from accessing the evidence at hand, the company should be encouraged to put stringent internal controls which will help in curbing internal espionages and also the government as a whole should enact laws that punish the caught suspects for the purpose of deterring potential suspects from committing the crime.
While economic espionage affects the whole economy of a country, the misappropriation of trade secrets affects either specific individuals or the company at large. It is difficult to measure the loss that comes with them but for quantification purposes. I think that economic espionage is far more damaging than the theft of trade secret because, speaking about economic espionage, the whole industry is exposed to threats, and, when the trade secret is successfully stolen, many employees will be forced to stay home unemployed as competition for the substance increases lowering its price and thus demand. For instance, in the United Sates, the value of intellectual property is un-measurable in the sense that it runs not only government top secrets but also the private sector at large (Lohr, 2010). The intellectual property is accountable for attracting more investors into the United States economy thus placing it as the world’s superpower. In other cases, the theft of trade secret may harm a country’s national security, for instance, when misappropriated technology such as U.S. munitions is left in the hands of the enemy, the enemy might have adverse advantage over the U.S. army. It has therefore been noted that threats to the nation’s economic interest are definitely threats that are likely to affect the nation’s crucial security interests, and thus protection of the same is somehow vital.
The potential remedy for economic espionage and the misappropriation of trade secret is to have all the States fully embrace the need for enacting laws that will help in fighting for such occurrences. The owners of the trade secrets are also advised to perform stringent checks aimed at reducing the vulnerability of such valuable information from potential criminals (Lohr, 2010).
The investigation and prosecution of the misappropriation of a trade secret though challenging undergoes a series of inflexible checks aimed at preventing the leakage of the trade secrets to both the law enforcers and the public at large. In order to make this process a success, the court allows for a parallel proceeding to take its full course. A parallel proceeding is defined as a consecutive criminal, civil or administrative investigation which involves a common set of findings from different mandated agencies, branches of the government or private petitioners in general. In these proceedings, the private party establishes and executes the evidence at their disposal in the form of interrogatory responses or those involving subsequent document requests and testimony at disposition and is believed to be of great interest to the prosecution team investigating potential EEA violations. The proceedings are run in good faith so that in case the involved professionals in bad faith engaged in the case are discovered, they are immediately suspended and the proceedings commence without their presence. A systematic approach is followed in case intrinsic legal issues are to be avoided completely. Legal bodies responsible for handling this kind of matter are established and are mandated to oversee that the case is prosecuted fairly and in good faith. A good example of such a body is the department of Justice’s Professional Responsibility Advisory Office. It is therefore wise to note that the success of the trade secret proceeding entirely depends on the level of coordination between the plaintiffs’ attorneys and the prosecution that has been mandated to oversee the successful prosecution of the matter (United States Department of Justice, 2009).
When the economic espionage or misappropriation of trade secrets involves a foreign entity, the complications arise when intended benefit is likely to accrue to a foreign instrumentality, and the complication even increases when the benefit to a foreign instrumentality is charged rather than be termed as a benefit to the foreign government or agent. Another complexity arises in the definition of terms whereby there is no case law interpreting the term “foreign instrumentality”. The legislative history then goes ahead to state that substantially is not taken to mean full control but rather material or significant control. All in all, the proceeding to this kind of incidence follows a bureaucratic chain which may sometimes cause so much delaying thus affecting the legality of the matter.