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Keep It Secret, Keep It Safe: Protecting Trade Secrets by Revisiting the Reasonable Efforts Requirement in Federal Law

– Molly Hubbard Cash

In a world where technological advances continuously reshape the digital landscape and create new ways to steal trade secrets stored electronically, the legal landscape leaves companies uncertain about how to protect themselves. While the protection federal trade secret law affords companies is extremely limited, the protection state trade secret law affords them varies by jurisdiction. Multi-state companies thus lack the certainty they need to protect themselves. Therefore, Congress should enact the Defend Trade Secrets Act of 2015, modified to (1) provide companies with a federal, private, civil right of action against those who steal their trade secrets and (2) make explicit the actions that a company must take to obtain federal trade secret protection for their trade secrets that are stored electronically by looking to the guidelines in the Health Insurance Portability and Accountability Act’s (“HIPAA”) Security Rule. In the Spring of 2016, President Obama signed the Defend Trade Secrets Act of 2016 (the “Act”) into law. The Act gave companies a federal, private, civil right of action against those who steal their trade secrets, but did not make explicit the actions that a company must take to obtain federal trade secret protection for their trade secrets that are stored electronically. This note is important because it describes the problems posed by the legal landscape before President Obama signed the Act into law and proposes one way to fix them. Some of these problems are still present today because the Act did not make explicit the actions that a company must take to obtain federal trade secret protection for their trade secrets that are stored electronically. Therefore, the solution it proposes is still relevant today.

Nicholas W. Armington, Brent A. Cohen, & Michael T. Renaud, Explaining the Defend Trade Secrets Act, American Bar Association, http://www.americanbar.org/publications/blt/2016/09/03_cohen.html (last visited Jan. 14, 2018).

Abstract Witten by William Spencer Barrow, 2018


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