Houston Journal of International Law
The United States is facing an international challenge: economic espionage, the theft of our intellectual assets and proprietary information. The events of September 11, 2001, pushed the seriousness of this activity to the far recesses of the public’s consciousness. While this threat to our national security lacks the visceral impact of September 11, the long-term national security implications (a decline in economic competitiveness) stemming from the systemic theft of intellectual property has consequences no less serious than a real-world terrorist attack. Espionage targeting intellectual assets and proprietary information is driven by the international competition characterizing a global economy. Americans have long ignored the preeminent rule of international economic competition: “Expediency outgrosses morality.” The success or failure of our ability to compete will determine U.S. economic well-being and, ultimately, our national security. The global economy that emerged after the Cold War is replete with strong, independent, predatory competitors, a state of affairs that can be attributed largely to U.S. economic globalism and the showcasing of American technology. The desire for American technology is the primary motivation for the continuing economic espionage activities undertaken by a multitude of foreign countries.
It has been obvious for over a decade that economic espionage is a serious problem. Appreciating the seriousness of this threat, Congress passed the Economic Espionage Act of 1996; the President signed the Act into law on October 11, 1996. The Economic Espionage Act (EEA) took a traditional approach to the activity at issue by treating the misappropriation of proprietary economic information as theft and criminalizing it. Congress believed that by prosecuting and sanctioning those who unlawfully appropriate proprietary information, we can deter others from engaging in such conduct.
Prosecution and punishment can contribute to preventing economic espionage, but they, alone, cannot accomplish this, for reasons we explain below. Our purpose in writing this article is to point out the danger of relying on traditional solutions in a nontraditional era; reacting to completed acts of economic espionage by sanctioning the perpetrator(s) is an effective strategy only if they can be identified, located, and apprehended.
Part II explains what economic espionage is and why it is a serious problem. Part III reviews the provisions and enforcement of the Economic Espionage Act and explains why it is not a viable approach to economic espionage in the twenty-first century. Part IV considers how we can more effectively address economic espionage.
Copyright © 2006, Houston Journal of International Law
University of Houston Law Center
Place of Publication
Brenner, Susan W. and Crescenzi, Anthony C., "State-Sponsored Crime: The Futility of the Economic Espionage Act" (2006). School of Law Faculty Publications. 104.