Revisiting Trade Secret Extraterritoriality
21 Pages Posted: 15 Oct 2019
Date Written: january 5, 2019
This Article analyzes the extraterritorial provision in the Defend Trade Secrets Act (DTSA) and considers the arguments on both sides of the question as to whether Congress expressed an affirmative indication that section 1837 of the Economic Espionage Act (EEA) would apply to the DTSA. We tackle the confusion surrounding the DTSA’s extraterritorial reach and suggest the use of a “domestic effect test,” which could be implemented via either amending the statute to provide greater clarity on its extraterritorial intention, or, absent an amendment, as a means of guiding courts in interpreting the statute’s extraterritorial reach in civil cases. This proposal is consistent with how courts and Congress have approached other areas of law that have faced similar questions on a statute’s extraterritorial reach.
Keywords: trade secrets, dtsa, defend trade secrets act, extraterritorial, foreign, economic espionage act, EEA, domestic effect, congressional intent, amending statute
JEL Classification: k1, k2
Suggested Citation: Suggested Citation