The DTSA and the New Secrecy Ecology

Business, Entrepreneurship, & Tax Law Review, 2017

San Diego Legal Studies Paper No. 17-317

21 Pages Posted: 10 Dec 2017 Last revised: 12 Dec 2017

See all articles by Orly Lobel

Orly Lobel

University of San Diego School of Law

Date Written: March 10, 2017


The Defend Trade Secrets Act (“DTSA”), which passed in May 2016, amends the Economic Espionage Act (“EEA”), a 1996 federal statute that criminalizes trade secret misappropriation. The EEA has been amended several times in the past five years to increase penalties for violations and expand the available causes of action, the definition of a trade secret, and the types behaviors that are deemed illegal. The creation of a federal civil cause of action is a further expansion of the secrecy ecology, and the DTSA includes several provisions that broaden the reach of trade secrets and their protection. This article raises questions about the expansive trajectory of trade secret law and its relationship to entrepreneurship, information flow, and job mobility. Lobel argues that an ecosystem that supports innovation must balance secrecy with a culture of openness and exchanges of knowledge. This symposium article is based on Professor Orly Lobel’s keynote presentation at the March 10, 2017 symposium entitles “Implementing and Interpreting the Defend Trade Secrets Act of 2016,” hosted by the University of Missouri School of Law’s Center for Intellectual Property and Entrepreneurship and the School’s Inaugural Issue of the Business, Entrepreneurship & Tax Law Review.

Keywords: Defend Trade Secrets Act, DTSA, Economic Espionage Act, EEA, secrecy ecology, trade secret law, trade secrecy and innovation policy, intellectual property, Disclosure Doctrine, entrepreneurship

JEL Classification: K22, K23, K31

Suggested Citation

Lobel, Orly, The DTSA and the New Secrecy Ecology (March 10, 2017). Business, Entrepreneurship, & Tax Law Review, 2017, San Diego Legal Studies Paper No. 17-317, Available at SSRN: or

Orly Lobel (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States


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