Abuse of the Journalist's Shield: A State-by-State Survey of Blogger Liability for Trade Secret Misappropriation and Texas's Shield Statutes as a Model for Federal Preemption

Abstract

This Comment addresses the tension between the maintenance of trade secrets and the potential liability issues that arise when a reporter/blogger disseminates those trade secrets. Specifically, this Comment focuses on whether third party bloggers should be subject to criminal sanctions under the Economic Espionage Act of 1996.For the proposal and solution sections, this Comment focuses on three dynamics that currently make trade secret law difficult to enforce. First, unlike all other forms of intellectual property, trade secrets are civilly enforced under state laws and do not benefit from a uniform, federal system of laws like copyrights, trademarks, and patents. With the advent of the Internet and modern commerce, business is no longer carried out only on a local scale. It is carried out in a national and international marketplace and should be afforded the standardized federal court jurisdiction that all other intellectual property rights are given. Second, courts today have placed too onerous of a burden on a corporation to establish whether that corporation has adequately guarded the secret. Only sufficiently guarded secrets are afforded trade secret status and protection. Third, The use of the Economic Espionage Act has been almost nonexistent since its enactment in 1996. Under the Economic Espionage Act, some trade secret infringement claims are actionable as a criminal offense. In certain bad faith infringement claims, use of the Economic Espionage Act may be the only deterrent to preventing misappropriation of an owner’s trade secret.The background section of this Comment begins with a historical look at trade secret protection, analyzes the depths and application of modern trade secret jurisprudence, closely uses the framework of a 2012 trade secret case as a framework for an in-depth analysis of the Economic Espionage Act. Next, the background section closely examines state reporter’s shield laws, and compares them with state trade secret laws. This Comment includes a detailed survey of all trade secret laws and reporter’s shield statutes for all fifty states and the District of Columbia and proposes Texas's journalist's shield statutes as a model for if or when federal court jurisdiction is provided for trade secret claims.