Elon Law professor David Levine calls for more transparency among negotiators and lawmakers concerning U.S. reaction to threats of Chinese cyber espionage in a Slate.com article published June 12.
Levine’s article characterizes Chinese cyber espionage as a utilization of new technology in “the age-old practice of stealing commercially valuable information.” Levine indicates that trade secret law is not currently written in such a way that it can appropriately combat the problem, but that the dynamics surrounding U.S. concern over Chinese cyber espionage may present a troubling context within which to formulate new trade secret laws.
“These are not the ideal conditions under which to calmly and thoughtfully rethink the law, but the general belief is apparently that something must be done immediately to stop, or at least curtail, the theft.” Levine writes in the article. “But though this wide-ranging discussion about reforming trade secret law is welcome and long overdue, the ‘cyberwar’ framing could further entrench dangerous trade-secrecy policies.”
Levin also writes that the effects of overreaction could be “profound, hampering the development and use of new forms of innovation and potentially limiting legitimate information gathering (also known as ‘competitive intelligence’).”
Levine gives examples of trade secrecy’s double-edged nature from a domestic standpoint.
“The same law that protects KFC’s fried chicken recipe also governs (and thereby can deny) public access to information about many issues of national importance, like the safety of fracking [hydraulic fracturing], the operation of voting machines, and the composition of our food supply, like the ‘pink slime’ in beef products,” Levine writes in the article.
Anticipating that Congress, in concert with negotiators of the Trans Pacific Partnership (TPP), the Trans Atlantic Free Trade Agreement (TAFTA) and others will in the coming months debate the place that trade secrecy law has in the new, globalized world, Levine urges consideration of the public interests at stake.
“Maybe negotiators and lawmakers will come to realize that trade secret owners are not the only entities with interests at issue here,” Levine writes. “Academics, civil society groups, state regulators and the public at large all have a significant stake in how the United States reacts to the threat of Chinese cyber espionage. Hopefully the discussions will take place transparently and with diverse input. Trade secrecy is having its moment in the sun—but hopefully we won’t end up getting burned.”
Slate.com is an online magazine with average online traffic of 3,810,000 unique monthly visitors according to Nielson Media Research, 2010.
More information about Elon Law Professor David Levine is available here.