Craig L. Uhrich


The publicity surrounding[...] incidents of industrial espionage resulted in a push for federal protections. In response to this pressure from U.S. industries, Congress passed the Economic Espionage Act of 1996 ("EEA"). The EEA protects trade secrets through the use of federal criminal sanctions." The EEA's provisions are introduced in Part I. Trade secrets are a form of intellectual property. Therefore, a basic understanding of intellectual property law is important to an analysis of the EEA. Part II of this Article provides an overview of the various forms of intellectual property. To be effective, the EEA must complement existing intellectual property jurisprudence. Yet, on its face the EEA prohibits practices that are otherwise lawful as part of a reverse engineering program. Part II of this Article also describes reverse engineering and examines its acceptance in each area of intellectual property law. Understanding the EEA in terms of the other forms of intellectual property protection and the practice of reverse engineering raises some concerns over the prudence of vigorous EEA enforcement. A strict reading of the EEA may prohibit reverse engineering. Since reverse engineering plays a significant role in the exploitation of knowledge committed to the public domain through the grant of patents and copyrights, prohibiting reverse engineering may stifle the drive to study and improve upon the existing knowledge base. Part III of this Article examines these concerns. The increasing importance of intellectual property in the world economy has created a trend toward criminalization of infringement. In addition to the acts covered by the EEA, some international agreements require criminal sanctions for infringement of various rights, certain acts of copyright infringement carry criminal penalties, and Congress is currently considering the Collections of Information Antipiracy Act. While these laws are designed to protect intellectual property, the inclusion of criminal sanctions means that they must be analyzed in light of criminal law theories such as notice, vagueness, and leniency. As this trend continues, and prosecutions under these new laws become more frequent, it will be important for criminal practitioners to have a firm grasp of intellectual property concepts and for intellectual property attorneys to understand the importance of criminal law. Finally, it is important for Congress to consider such criminal law issues when enacting new intellectual property legislation. A discussion of these issues with respect to the EEA provides a framework for developing this discussion with respect to other intellectual property laws. To assist in determining the legitimacy of these concerns, Part I also examines the legislative history of the EEA to ascertain congressional intent with respect to the identified problems. Based upon the issues raised in Part III, Part IV proposes a solution to address these concerns while maintaining the effectiveness of the EEA in fulfilling its intended purpose. Specifically, the Article proposes amending the EEA to explicitly allow reverse engineering and to limit its application to espionage activities similar to those Congress had in mind when drafting the Act.