RATs, TRAPs, and Trade Secrets

Abstract

Technology has facilitated both the amount of trade secrets that are now stored electronically, and the rise of cyber intrusions. Together, this has created a storm perfectly ripe for economic espionage. Cyber misappropriation from American companies is a growing concern. Cases involving unknown or anonymous offenders who may not be in the United States and who steal trade secrets using remote access tools (RATs) are especially problematic. What makes the problem urgent, elusive, and significant is that we do not appear to have any effective judicial or legislative tools with which to address it. This Article is the first to address and place trade secret misappropriation within the larger backdrop of cyber security.The Article makes several novel contributions as it takes on this dilemma. First, it argues that systemic issues related to technology will continue to make legislative and judicial solutions suboptimal for cyber misappropriation. Second, it explores how the rhetoric of war has infiltrated the national discourse on cyber security and economic espionage, and draws comparisons to the War on Drugs from the 1980s. It then discusses the implications that this narrative might have on how companies view their obligation to protect trade secrets and other confidential information. Third, while considering the technological and human factors underlying cyber misappropriation, the Article introduces and coins the acronym TRAP for “technologically responsive active protection” to serve as a guiding principle to further refine the reasonable efforts requirement for the protection of trade secrets. It provides a comprehensive and thoughtful analysis into how a self-help and self-defense approach might allow companies to re-conceptualize their roles as part of their efforts to secure their trade secrets, and critically examines controversial active defense counterstrike techniques, such as hacking back, and their legal implications.