Elon Law Professor David Levine details the evolving rationale for federal trade secrets legislation and says the bill creates more harm than good, no matter the arguments presented in favor of it.
Levine has led efforts by law scholars and other experts to oppose the Defend Trade Secrets Act (DTSA), including co-authored testimony before the U.S. Senate Judiciary Committee with law scholar Sharon Sandeen. In January 25 commentary on the blog of the Center for Internet and Society (CIS) at Stanford Law School, where Levine is an affiliate scholar, the trade secrets law expert applauds members of the U.S. Senate and others for recognizing that the DTSA is not primarily about cybersecurity, but challenges sponsors of the bill to address the legislation’s many downsides.
“There is no federal jurisprudence around trade secret law, so there will be less uniformity in trade secrecy as the DTSA is litigated, interpreted and applied (assuming that uniformity is even lacking; it isn’t),” Levine writes. “And all of the downsides — from abusive litigation against small entities and start-ups using (or not using) a problematic ex parte seizure remedy … to resurrecting the anti-employee inevitable disclosure doctrine — remain.”
In his commentary, Levine urges all in the debate over DTSA to reconsider the legislation under its “new” rationale.
“Because the DTSA’s sponsors’ and supporters’ core argument seems to have changed, that change should be taken seriously,” Levine writes. “Especially as the DTSA continues to move through the Senate, we should take heed of the changing reasons for the DTSA’s being and the supporters’ understanding of the legislation. At a minimum, we can now stop calling the DTSA an anti-cyberespionage bill, because it isn’t, and never was. The sponsors and lobbyists apparently now agree. While I remain open to deeper understanding of why the DTSA was introduced in the first place, the math on the DTSA has just gotten easier, and leads to my continued (and deepened) opposition.”
Read Levine’s complete CIS blog post in DTSA here.