Using BITs to Protect Bytes: Promoting Cyber Peace by Safeguarding Trade Secrets Through Bilateral Investment Treaties
2015; Wiley; Volume: 52; Issue: 1 Linguagem: Inglês
10.1111/ablj.12041
ISSN1744-1714
AutoresScott J. Shackelford, Eric L. Richards, Anjanette Raymond, Amanda Craig,
Tópico(s)Corporate Law and Human Rights
ResumoAmerican Business Law JournalVolume 52, Issue 1 p. 1-74 Original Article Using BITs to Protect Bytes: Promoting Cyber Peace by Safeguarding Trade Secrets Through Bilateral Investment Treaties Scott J. Shackelford, Scott J. ShackelfordSearch for more papers by this authorEric L. Richards, Eric L. RichardsSearch for more papers by this authorAnjanette H. Raymond, Anjanette H. RaymondSearch for more papers by this authorAmanda N. Craig, Amanda N. CraigSearch for more papers by this author Scott J. Shackelford, Scott J. ShackelfordSearch for more papers by this authorEric L. Richards, Eric L. RichardsSearch for more papers by this authorAnjanette H. Raymond, Anjanette H. RaymondSearch for more papers by this authorAmanda N. Craig, Amanda N. CraigSearch for more papers by this author First published: 22 January 2015 https://doi.org/10.1111/ablj.12041Citations: 2Read the full textAboutPDF ToolsExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onEmailFacebookTwitterLinkedInRedditWechat Footnotes 1See Huawei to Come Under Increased Scrutiny from GCHQ, BBC News (Dec. 17, 2013, 9:47 AM) [hereinafter Huawei Under Scrutiny], http://www.bbc.co.uk/news/technology-25417332. 2See id.; Simon Montlake, U.S. Congress Flags China's Huawei, ZTE as Security Threats, Forbes (Oct. 8, 2012, 12:37 AM), http://www.forbes.com/sites/simonmontlake/2012/10/08/u-s-congress-flags-chinas-huawei-zte-as-security-threats/. 3 Huawei Under Scrutiny, supra 1. 4See, e.g., Scott Clavenna, Executive Summary, Remade in China: Huawei and the Future of the Global Telecom Market (2006), http://www.heavyreading.com/details.asp?sku_id=1160&skuitem_itemid=939. 5See Dave Lee, New York Times and Twitter Struggle After Syrian Hack, BBC News (Aug. 28, 2013, 7:05 AM), http://www.bbc.co.uk/news/technology-23862105; China Hit by "Biggest Ever" Cyber-Attack, BBC News (Aug. 27, 2013, 7:53 AM), http://www.bbc.co.uk/news/technology-23851041; Karen McVeigh, NSA Surveillance Program Violates the Constitution, ACLU Says, Guardian (Aug. 27, 2013, 3:31 PM), http://www.theguardian.com/world/2013/aug/27/nsa-surveillance-program-illegal-aclu-lawsuit. 6See Thomas Rid, Cyber War Will Not Take Place 37–38 (2013); Paolo Passeri, What Is a Cyber Weapon?, Hackmageddon.com (Apr. 22, 2012), http://hackmageddon.com/2012/04/22/what-is-a-cyber-weapon/ (discussing some of the difficulties involved with defining "cyber weapons"). 7See, e.g., Jonathan B. Wolf, War Games Meets the Internet: Chasing 21st Century Cybercriminals with Old Laws and Little Money, 28 Am. J. Crim. L. 95, 96 (2000); Debra Wong Yang & Brian M. Hoffstadt, Essay, Countering the Cyber-Crime Threat, 43 Am. Crim. L. Rev. 201, 201–02 (2006); Cybercrime Threat on the Rise, Says PwC Report, BBC News (Mar. 26, 2012, 7:01 PM), http://www.bbc.co.uk/news/business-17511322. 8Sheldon Whitehouse, U.S. Sen., Sheldon Speaks in Senate on Cyber Threats, Speech Before the U.S. Senate (July 27, 2010), available at http://www.whitehouse.senate.gov/news/speeches/sheldon-speaks-in-senate-on-cyber-threats. But see Peter Maass & Megha Rajagopalan, Does Cybercrime Really Cost $1 Trillion?, ProPublica (Aug. 1, 2012, 12:12 PM), http://www.propublica.org/article/does-cybercrime-really-cost-1-trillion (critiquing various estimates of cybercrime-based losses). 9See Clay Wilson, Cyber Crime, in Cyberpower and National Security 415, 424–26 ( Franklin D. Kramer et al. eds., 2009); Ramona R. Rantala, Bureau of Justice Statistics, U.S. Dep't of Justice, No. NCJ 221943, Cybercrime Against Businesses, 2005 1, 3 (2008), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cb05.pdf. 10Kurt Calia et al., Economic Espionage and Trade Secret Theft: An Overview of the Legal Landscape and Policy Responses, Covington & Burling LLP 3 (2013), available at http://www.gwumc.edu/hspi/policy/Economic%20Espionage%20and%20Trade%20Secret%20Theft%20-%20September%202013.pdf. 11See, e.g., United Nations Conf. on Trade & Dev. (UNCTAD), Bilateral Investment Treaties 1995–2006: Trends in Investment Rulemaking xi (2007), available at http://unctad.org/en/Docs/iteiia20065_en.pdf. 12 UNCTAD, World Investment Report 2013: Global Value Chains: Investment and Trade for Development 101 (2013), available at http://unctad.org/en/PublicationsLibrary/wir2013_en.pdf. There were also another 339 trade agreements, bringing the total number of international investment agreements to 3,196. Id.; see also ICSID Database of Bilateral Investment Treaties, International Center for the Settlement of Investment Disputes (ICSID), https://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDPublicationsRH&actionVal=ViewBilateral&reqFrom=Main (last visited Apr. 29, 2014). 13See Gus Van Harten, Investment Treaty Arbitration and Public Law 6 (2007). 14See Annie Lowrey, U.S. and China to Discuss Investment Treaty, but Cybersecurity Is a Concern, N.Y. Times, July 12, 2013, at A5. 15Id. (internal quotation marks omitted). 16See, e.g., Chen Weihua, US, China Hopeful of BIT After Talks Reignited, China Daily (July 13, 2013, 8:26 AM), http://www.chinadaily.com.cn/cndy/2013-07/13/content_16770417.htm; US Presses China to Stop Growing Trade Secret Theft, Reuters (May 1, 2013, 9:07 PM), http://www.cnbc.com/id/100697434. 17See China Plans First Talks With U.S. Under Cybersecurity Dialogue, Bloomberg (July 5, 2013, 10:00 AM), http://www.bloomberg.com/news/2013-07–05/china-plans-first-talks-with-u-s-under-cybersecurity-dialogue.html. 18See, e.g., Doug Palmer, U.S. EU Launch Free Trade Talks Despite Spying Concerns, Ins. J. (July 9, 2013), http://www.insurancejournal.com/news/international/2013/07/09/297817.htm; but see James Fontanella-Khan, Brussels Opposes German Data Protection Push, Fin. Times, Nov. 5, 2013, at 8 ("Brussels has ruled out a German push to include data protection rules in a proposed EU–U.S. free trade pact, arguing that it could derail the talks and ultimately weaken Europeans' rights to privacy."). 19See Kevin Collier, Sen. Ron Wyden on the Problems with the Trans-Pacific Partnership, Daily Dot (Sept. 19, 2012), http://www.dailydot.com/politics/ron-wyden-trans-pacific-partnership/. 20However, regarding the latter, while the World Trade Organization (WTO) has been used as a forum to air broader concerns among the member states, it has to date been a factor in the cybersecurity context because of provisions allowing nations to shirk their free trade commitments when they conflict with national security. See, e.g., Allan A. Friedman, Brookings Inst., Cybersecurity and Trade: National Policies, Global and Local Consequences 10–11 (2013), available at http://www.brookings.edu/~/media/research/files/papers/2013/09/19%20cybersecurity%20and%20trade%20global%20local%20friedman/brookingscybersecuritynew.pdf; Mark L. Movsesian, Essay, Enforcement of WTO Rulings: An Interest Group Analysis, 32 Hofstra L. Rev. 1, 1–2 (2003) (describing the WTO Dispute Settlement Understanding and noting that trade disputes between nations "are to be resolved in adversarial proceedings before impartial panels of experts" under this system); James A. Lewis, Ctr. Strategic & Int'l Stud., Conflict and Negotiation in Cyberspace 49–51 (2013), available at https://csis.org/files/publication/130208_Lewis_ConflictCyberspace_Web.pdf (discussing the applicability of the WTO dispute resolution processes to help manage cyber espionage). This limitation in the WTO composition underscores the need for bilateral and regional approaches to enhancing cybersecurity. 21See, e.g., Scott J. Shackelford, Essay, In Search of Cyber Peace: A Response to the Cybersecurity Act of 2012, 64 Stan. L. Rev. Online 106 (2012), available at http://www.stanfordlawreview.org/online/cyber-peace; Tom Gjelten, Seeing the Internet as an "Information Weapon," NPR (Sept. 23, 2010, 12:00 AM), http://www.npr.org/templates/story/story.php?storyId=130052701 (discussing the fact that United Nations-sponsored cyber disarmament discussions have been ongoing since the late 1990s without much to show for it). 22Cf. Steven E. Feldman & Sherry L. Rollo, Extraterritorial Protection of Trade Secret Rights in China: Do Section 337 Actions at the ITC Really Prevent Trade Secret Theft Abroad?, 11 J. Marshall Rev. Intell. Prop. L. 523, 525 (2012); Gerald O'Hara, Cyber-Espionage: A Growing Threat to the American Economy, 19 CommLaw Conspectus 241, 253–54 (2010); Peter Swire & Kenesa Ahmad, Encryption and Globalization, 13 Colum. Sci. & Tech. L. Rev. 416, 475–76 (2012). 23See Scott J. Shackelford, From Nuclear War to Net War: Analogizing Cyber Attacks in International Law, 27 Berkeley J. Int'l L. 192, 231 (2009) (introducing the international law applicable above and below the armed attack threshold; above the threshold is the point at which the law of war is activated). 24This multilevel, multipurpose, multifunctional, and multisectorial model, championed by scholars including Nobel Laureate Elinor Ostrom and Professor Vincent Ostrom, challenges orthodoxy by demonstrating the benefits of self-organization, networking regulations "at multiple scales," and examining the extent to which national and private control can in some cases coexist with communal management. Michael D. McGinnis, An Introduction to IAD and the Language of the Ostrom Workshop: A Simple Guide to a Complex Framework, 39 Pol'y Stud. J. 169, 171 (2011) (defining polycentricity as "a system of governance in which authorities from overlapping jurisdictions (or centers of authority) interact to determine the conditions under which these authorities, as well as the citizens subject to these jurisdictional units, are authorized to act as well as the constraints put upon their activities for public purposes"); Elinor Ostrom, Polycentric Systems as One Approach for Solving Collective-Action Problems 1 (Ind. Univ. Workshop in Political Theory and Policy Analysis, Working Paper Series No. 08–6, 2008), available at http://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/4417/W08-6_Ostrom_DLC.pdf?sequence=1. 25The "basic idea" of polycentric governance "is that any group of individuals facing some collective problem should be able to address that problem in whatever way they best see fit." Michael D. McGinnis, Costs and Challenges of Polycentric Governance: An Equilibrium Concept and Examples from U.S. Health Care 1 (Vincent and Elinor Ostrom Workshop in Political Theory and Policy Analysis, Working Paper No. W11-3, 2011), available at http://ssrn.com/abstract=2206980. This could include using existing governance structures, or crafting new systems. Id. at 1–2. 26For purposes of this article, cyber attacks are defined in keeping with the National Academy of Sciences approach, recognizing that not all cyber attacks so labeled are attacks in a legal sense and understanding that this term includes a wide and largely undefined continuum of more or less invasive and disruptive actions. Technology, Policy, Law, and Ethics Regarding U.S. Acquisition and Use of Cyberattack Capabilities 15 ( William A. Owens et al. eds., 2009); see also Patrick Thibodeau, Black Hat Puts "Offense" on Its Cyber Agenda, Computerworld (Jan. 18, 2011, 4:34 PM), http://www.computerworld.com/s/article/9205441/Black_Hat_puts_offense_on_its_cyber_agenda. 27See War in the Fifth Domain, Economist, July 3, 2010, at 25; Thomas Rid, Think Again: Cyberwar, Foreign Pol'y (Feb. 27, 2012), http://www.foreignpolicy.com/articles/2012/02/27/cyberwar. 28See, e.g., Kim Zetter, Google Hack Attack Was Ultra Sophisticated, New Details Show, Wired (Jan. 14, 2010, 8:01 PM), http://www.wired.com/threatlevel/2010/01/operation-aurora/. 29See Michael Joseph Gross, Enter the Cyber-Dragon, Vanity Fair, Sept. 2011, at 220; Brian Grow & Mark Hosenball, Special Report: In Cyberspy vs. Cyberspy, China Has the Edge, Reuters (Apr. 14, 2011, 3:52 PM), http://www.reuters.com/article/2011/04/14/us-china-usa-cyberespionage-idUSTRE73D24220110414; Kim Zetter, "Google" Hackers Had Ability to Alter Source Code, Wired (Mar. 3, 2010, 11:05 PM), http://www.wired.com/threatlevel/2010/03/source-code-hacks/. 30See Zetter, supra 28. 31Id. (internal quotation marks omitted). 32McAfee, Protecting Your Critical Assets: Lessons Learned from "Operation Aurora" 3 (2010), available at http://www.wired.com/images_blogs/threatlevel/2010/03/operationaurora_wp_0310_fnl.pdf. 33See id. at 4. 34See U.S.–China Econ. & Sec. Rev. Comm'n, 2012 Report to Congress 168 (2012), available at http://www.scribd.com/doc/124212748/2012-REPORT-TO-CONGRESS-of-the-U-S-CHINA-ECONOMIC-AND-SECURITY-REVIEW-COMMISSION ("In 2012, Chinese state-sponsored actors continued to exploit government, military, industrial, and nongovernmental computer systems."); Verizon, Data Breach Investigations Report 5, 21–22 (2013), available at http://www.verizonenterprise.com/resources/reports/rp_data-breach-investigations-report-2013_en_xg.pdf [hereinafter DBIR 2013] (reporting that state-sponsored attacks accounted for nineteen percent of all reported attacks, with organized crime being the biggest external source at fifty-five percent). 35See Damon Poeter, Microsoft Joins Ranks of the Tragically Hacked, PCMag.com (Feb. 22, 2013, 8:18 PM), www.pcmag.com/article2/0,2817,2415787,00.asp. 36See Dmitri Alperovitch, Revealed: Operation Shady RAT 6–9 (2011), available at http://www.mcafee.com/us/resources/white-papers/wp-operation-shady-rat.pdf. 37 Office Nat'l Counterintelligence Exec., Report to Congress on Foreign Economic Collection and Industrial Espionage, 2009–2011: Foreign Spies Stealing US Economic Secrets in Cyberspace i (2011), available at http://www.ncix.gov/publications/reports/fecie_all/Foreign_Economic_Collection_2011.pdf; see also DBIR 2013, supra 34, at 21 ("96% of espionage cases were attributed to threat actors in China and the remaining 4% were unknown."). 38See Oliver Rochford, A Convenient Scapegoat—Why All Cyber Attacks Originate in China, SecurityWeek (Sept. 27, 2012), http://www.securityweek.com/convenient-scapegoat-why-all-cyber-attacks-originate-china ("The evidence for China's involvement is often flimsy: an IP traced back to Chinese cyberspace, or a few Chinese characters or references on the digital corpse left on a victim's computing device."). 39Geoff Dyer & Richard Waters, Spying Threatens Internet, Say Experts, Fin. Times, Nov. 1, 2013, at 4 (" 'US credibility as a neutral steward of the internet has been severely damaged by the NSA revelations,' said Milton Mueller, professor at Syracuse University school of information studies."); Anton Troianovski et al., European Fury over U.S. Spying Mounts, Wall St. J. (Oct. 24, 2013, 10:58 PM), http://online.wsj.com/news/articles/SB40001424052702304799404579154950188871722 ("In Brussels, some key European Union officials questioned whether it made sense to continue with talks on a trans-Atlantic free-trade agreement."). However, the EU later rebuffed German demands that data protection rules be included in the negotiations. See Fontanella-Khan, supra 18. 40See Paulo Trevisani & Matthew Cowley, New Target of Outrage in Brazil Is Canada, Wall St. J., Oct. 8, 2013, at A11 ("The report said [Canada spied on Internet communications between top Brazilian energy officials and the] results were shared with four other partners that make up an intelligence ring referred to as Five Eyes: the U.S., U.K., Australia and New Zealand."). 41Gerald Jeffris, Brazil's President Pokes at U.S. Spying, Wall St. J. (Sept. 25, 2013, 12:10 AM), http://online.wsj.com/news/articles/SB20001424052702304213904579095210325139486. 42Chris Bryant, NSA Claims Put German Business on Guard, Fin. Times, Nov. 1, 2013, at 4. 43Id. 44Id. ("In all of the documentation leaked by Mr. Snowden, there has however been no evidence to date the US has passed on foreign companies' trade secrets to its own companies."); cf. James Glanz & Andrew W. Lehren, Files Show Extent of N.S.A. Dragnet: Leaked Documents Name Both Friends and Foes as Targets of Eavesdropping, N.Y. Times, Dec. 21, 2013, at 5 (reporting that a spokesperson for the NSA, while denying that the agency relayed trade secrets to U.S. companies, stressed that the United States had national security reasons for gathering economic intelligence). 45See Henry Farrell & Martha Finnemore, Comment, The End of Hypocrisy: American Foreign Policy in the Age of Leaks, 92 Foreign Aff., no. 6, Nov.–Dec. 2013, at 22, 22–23 ("When these deeds turn out to clash with the government's public rhetoric, . . . it becomes harder for U.S. allies to overlook Washington's covert behavior and easier for U.S. adversaries to justify their own."). 46See Andrew Jacobs, After Reports on N.S.A., China Urges End to Spying, N.Y. Times, Mar. 25, 2014, at A10. 47Farrell & Finnemore, supra 45, at 25 ("Protected from major criticism, U.S. officials were planning a major public relations campaign to pressure China into tamping down its illicit activities in cyberspace, starting with threats and perhaps culminating in legal indictments of Chinese hackers."). 48See Bryant, supra 42. 49Kal Raustiala & Christopher Sprigman, Comment, Fake It Till You Make It: The Good News About China's Knockoff Economy, 92 Foreign Aff., no. 4, July–Aug. 2013, at 25, 25. 50See U.S. Int'l Trade Comm'n, Pub. No. 4226, China: Effects of Intellectual Property Infringement and Indigenous Innovation Policies on the U.S. Economy 3–42 (2011), available at http://www.usitc.gov/publications/332/pub4226.pdf (reporting 2009 estimates). 51Raustiala & Sprigman, supra 49, at 26 (internal quotation marks omitted). "Washington justifiably views this as an official green light for piracy." Id. 52See U.S. Gov't Accountability Office, GAO-13-462T, Cybersecurity: A Better Defined and Implemented National Strategy Is Needed to Address Persistent Challenges 6 fig.1 (2013), available at http://www.gao.gov/assets/660/652817.pdf (showing the rise in cyber incidents reported to the U.S. Computer Emergency Readiness Team since 2006). 53See, e.g., Charles Doyle, Cong. Research Serv., R42681, Stealing Trade Secrets and Economic Espionage: An Overview of 18 U.S.C. 1831 and 1832, at 1, 8–9 (2013), available at http://www.fas.org/sgp/crs/secrecy/R42681.pdf (discussing the differences between trade secrets theft and economic espionage). Doyle notes, There are four principal differences. The theft of a trade secret must involve the intent to benefit someone other than the owner. It must involve an intent to injure the owner. And, it must involve a trade secret 'that is related to or included in a product that is produced for or placed in interstate or foreign commerce.' Economic espionage, on the other hand, must involve an intent to benefit a foreign entity or at least involve the knowledge that the offense will have that result. It does not require an intent to injure the owner. And, it applies to any trade secret, notwithstanding the absence of any connection to interstate or foreign commerce. Finally, economic espionage is punished more severely. Id. (footnotes omitted). 54See Jefferson D. Reynolds, Collateral Damage on the 21st Century Battlefield: Enemy Exploitation of the Law of Armed Conflict, and the Struggle for a Moral High Ground, 56 A.F. L. Rev. 1, 1–2 (2005). Defining the threshold at which a cyber attack becomes an armed attack is a critical but difficult proposition. For example, Harold Koh, the State Department's chief legal adviser, has said that for a cyber attack to "constitute a 'use of force' under international law," it would have to "proximately result in death, injury or significant destruction." Aram Roston, U.S.: Laws of War Apply to Cyber Attacks, NavyTimes (Sept. 18, 2012, 8:18 PM), http://www.navytimes.com/news/2012/09/dn-laws-of-war-apply-cyber-attacks-091812/ (internal quotation marks omitted). 55See, e.g., Kasia Klimasinska & Ian Katz, U.S.–China Talks Delve into Central Banks amid Snowden Cloud, Bloomberg (July 9, 2013, 10:23 PM), http://www.bloomberg.com/news/2013-07–09/u-s-china-talks-delve-into-central-banks-as-snowden-casts-cloud.html. 56 What Is a Trade Secret?, WIPO, http://www.wipo.int/sme/en/ip_business/trade_secrets/trade_secrets.htm (last visited May 6, 2014); see also 18 U.S.C. § 1839(3) (2012) ("[T]the term 'trade secret' means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if—(A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public…."). 57The Uniform Trade Secrets Act, which generally is followed by local authorities within the United States, defines a trade secret as information that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and; (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Unif. Trade Secrets Act § 1(4)(i)–(ii) (amended 1985), 14 U.L.A. 438 (1985), available at http://www.uniformlaws.org/shared/docs/trade%20secrets/utsa_final_85.pdf. This definition is reinforced by the Restatement (Third) of Unfair Competition, which defines a trade secret as "any information that can be used in the operation of a business or other enterprise that is sufficiently valuable and secret to afford an actual or potential economic advantage over others." Restatement (Third) of Unfair Competition § 39 (1995). 58See, e.g., infra 70 and accompanying text. 59 What Is a Trade Secret?, supra 56. 60Pub. L. No. 104-294, 110 Stat. 3488 (1996) (codified as amended at 18 U.S.C. §§ 1831–1839). 61Doyle, supra 53, Summary ("Section 1832 requires that the thief be aware that the misappropriation will injure the secret's owner to the benefit of someone else. Section 1831 requires only that the thief intend to benefit a foreign government or one of its instrumentalities."). 62Pub. L. No. 99-474, 100 Stat. 1213 (1986) (codified as amended at 18 U.S.C. § 1030); see 18 U.S.C. §§ 1030(a)(4), (e)(2). 63Pub. L. No. 73-246, ch. 333, 48 Stat. 794 (1934) (codified as amended at 18 U.S.C. §§ 2311–2323); see 18 U.S.C. § 2314 ("Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted, or taken by fraud . . . shall be fined under this title or imprisoned not more than ten years or both."). 64Pub. L. No. 82-555, ch. 879, § 18(a), 66 Stat. 722 (1952) (codified as amended at 18 U.S.C. § 1343) ("Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire . . . any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both."). 65Pub. L. No. 112-269, 126 Stat. 2442 (2013) (codified at 18 U.S.C. § 1831 (Supp. 2013)). 66Unif. Trade Secrets Act § 1(1) (amended 1985), 14 U.L.A. 438 (1985). 67Restatement (Third) of Unfair Competition § 43 (1995). Eschewing any effort to draft a comprehensive list of acts that are improper, the Restatement explains that "conduct that is itself a tortious or criminal invasion of the trade secret owner's rights . . . ordinarily will be regarded as improper." Id. at cmt. c at 494. Beyond that, however, the Restatement stresses that "[t]he propriety of the acquisition must be evaluated in light of all the circumstances of the case." Id. (This includes "whether the means of acquisition are inconsistent with accepted principles of public policy and the extent to which the acquisition was facilitated by the trade secret owner's failure to take reasonable precautions against discovery of the secret by the means in question. Among the factors relevant to the reasonableness of the trade secret owner's precautions are the foreseeability of the conduct through which the secret was acquired and the availability and cost of effective precautions against such an acquisition, evaluated in light of the economic value of the trade secret."); see E.I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012 (5th Cir. 1970) (discussing the reasonableness of efforts to maintain secrecy; applying Texas law). 68See Patents or Trade Secrets?, WIPO, http://www.wipo.int/sme/en/ip_business/trade_secrets/patent_trade.htm (last visited May 8, 2014). 69But see id. (providing a list of the disadvantages of going with trade secrets instead of patents in situations in which both are applicable). 70Shan Hailing, The Protection of Trade Secrets in China 1 (2d ed. 2012). 71Id. The World Intellectual Property Organization (WIPO) places such traditional knowledge within the framework of the intellectual property regime. See Qu Sanqiang, Intellectual Property Law in China 475–477 (2012). However, "[a]s of now, there is no international treaty that clearly protects traditional knowledge in the international community as yet." Id. at 478. 72Hailing, supra 70, at 1. 73Id. at 2 (quoting Provisional Regulations for Maintaining State Secrets (promulgated by the Government Administrative Council, 1951), art. 1). "[T]he term 'trade secret' appears nowhere in the language of [the] legislation [from that era]." Id. 74Id. 75Id. at 4. 76Id. at 5 "[E]vidence that involves State secrets, trade secrets, and personal privacy shall be kept confidential." Civil Procedure Law of the People's Republic of China (promulgated by Order No. 44 of the President of the People's Republic of China, Apr. 9, 1991), art. 66, available at http://www.china.org.cn/english/government/207339.htm. 77Hailing, supra 70, at 5 (quoting Provisions of the Supreme People's Court regarding Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China (July 14, 1992), art. 154 (compiled in Jingji Shenpan Shouce [Judicial Handbook for Commercial Courts] 711, 718 (1987))). 78Id. at 8. 79Law of the People's Republic of China Against Unfair Competition (promulgated by Order No. 10 of the President of the People's Republic of China, Dec. 1, 1991), art. 2, available at http://www.wipo.int/wipolex/en/text.jsp?file_id=125970. 80It specifically held that infringe upon trade secrets: A business operator shall not use any of the following means to (1) obtaining an obligee's trade secrets by stealing, luring, intimidation or any other unfair means; (2) disclosing, using or allowing another person to use the trade secrets obtained from the obligee by the means mentioned in the preceding paragraph; or (3) in violation of the agreement or against the obligee's demand for keeping trade secrets, disclosing, using or allowing another person to use the trade secrets he possesses. Obtaining, using or disclosing another's trade secrets by a third party who clearly knows or ought to know that the case falls under the unlawful acts listed in the preceding paragraph shall be deemed as infringement upon trade secrets. Id. art. 10. The law also provided a precise definition of what constitutes a trade secret, explaining that it "refers to any technology information or business operatio
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