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ECONOMIC ESPIONAGE ACT OF 1996

Oct. 11, 1996

[H.R. 3723]

Economic
Espionage Act of
1996.
18 USC 1 note.

 

To amend title 18, United States Code, to protect proprietary economic information, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Economic Espionage Act of 1996’’.

 

TITLE I—PROTECTION OF TRADE
SECRETS

SEC. 101. PROTECTION OF TRADE SECRETS.

(a) IN GENERAL.—Title 18, United States Code, is amended by inserting after chapter 89 the following:

‘‘CHAPTER 90—PROTECTION OF TRADE SECRETS

‘‘Sec.‘‘1831. Economic espionage.‘‘1832. Theft of trade secrets.‘‘1833. Exceptions to prohibitions.‘‘1834. Criminal forfeiture.‘‘1835. Orders to preserve confidentiality.‘‘1836. Civil proceedings to enjoin violations.‘‘1837. Conduct outside the United States.‘‘1838. Construction with other laws.‘‘1839. Definitions.

‘‘§ 1831. Economic espionage

‘‘(a) IN GENERAL.—Whoever, intending or knowing that the offense will benefit any foreign government, foreign instrumentality, or foreign agent, knowingly—

‘‘(1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains a trade secret;

‘‘(2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails, communicates, or conveys a trade secret;

‘‘(3) receives, buys, or possesses a trade secret, knowing the same to have been stolen or appropriated, obtained, or converted without authorization;

‘‘(4) attempts to commit any offense described in any of paragraphs (1) through (3); or

‘‘(5) conspires with one or more other persons to commit
any offense described in any of paragraphs (1) through (3),
and one or more of such persons do any act to effect the
object of the conspiracy,
shall, except as provided in subsection (b), be fined not more than $500,000 or imprisoned not more than 15 years, or both.

‘‘(b) ORGANIZATIONS.—Any organization that commits any offense described in subsection (a) shall be fined not more than $10,000,000.

‘‘§ 1832. Theft of trade secrets

‘‘(a) Whoever, with intent to convert a trade secret, that is related to or included in a product that is produced for or placed in interstate or foreign commerce, to the economic benefit of anyone other than the owner thereof, and intending or knowing that the offense will, injure any owner of that trade secret, knowingly—

‘‘(1) steals, or without authorization appropriates, takes,
carries away, or conceals, or by fraud, artifice, or deception
obtains such information;

‘‘(2) without authorization copies, duplicates, sketches,
draws, photographs, downloads, uploads, alters, destroys, photo
copies, replicates, transmits, delivers, sends, mails, communicates, or conveys such information;

‘‘(3) receives, buys, or possesses such information, knowing
the same to have been stolen or appropriated, obtained, or
converted without authorization;

‘‘(4) attempts to commit any offense described in paragraphs (1) through (3); or

‘‘(5) conspires with one or more other persons to commit
any offense described in paragraphs (1) through (3), and one
or more of such persons do any act to effect the object of
the conspiracy,

shall, except as provided in subsection (b), be fined under this title or imprisoned not more than 10 years, or both. ‘‘(b) Any organization that commits any offense described in subsection (a) shall be fined not more than $5,000,000.

‘‘§ 1833. Exceptions to prohibitions

‘‘This chapter does not prohibit—

‘‘(1) any otherwise lawful activity conducted by a govern
mental entity of the United States, a State, or a political
subdivision of a State; or

‘‘(2) the reporting of a suspected violation of law to any
governmental entity of the United States, a State, or a political
subdivision of a State, if such entity has lawful authority with
respect to that violation.

‘‘§ 1834. Criminal forfeiture

‘‘(a) The court, in imposing sentence on a person for a violation of this chapter, shall order, in addition to any other sentence imposed, that the person forfeit to the United States—

‘‘(1) any property constituting, or derived from, any
proceeds the person obtained, directly or indirectly, as the
result of such violation; and

‘‘(2) any of the person’s property used, or intended to be
used, in any manner or part, to commit or facilitate the commission of such violation, if the court in its discretion so determines,

taking into consideration the nature, scope, and proportionality of the use of the property in the offense. ‘‘(b) Property subject to forfeiture under this section, any seizure

and disposition thereof, and any administrative or judicial proceeding in relation thereto, shall be governed by section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), except for subsections (d) and (j) of such section, which shall not apply to forfeitures under this section.

‘‘§ 1835. Orders to preserve confidentiality

‘‘In any prosecution or other proceeding under this chapter, the court shall enter such orders and take such other action as may be necessary and appropriate to preserve the confidentiality of trade secrets, consistent with the requirements of the Federal Rules of Criminal and Civil Procedure, the Federal Rules of Evidence, and all other applicable laws. An interlocutory appeal by the United States shall lie from a decision or order of a district court authorizing or directing the disclosure of any trade secret.

‘‘§ 1836. Civil proceedings to enjoin violations

‘‘(a) The Attorney General may, in a civil action, obtain appropriate injunctive relief against any violation of this section. ‘‘(b) The district courts of the United States shall have exclusive original jurisdiction of civil actions under this subsection.

‘‘§ 1837. Applicability to conduct outside the United States

This chapter also applies to conduct occurring outside the United States if—

‘‘(1) the offender is a natural person who is a citizen or permanent resident alien of the United States, or an organization organized under the laws of the United States or a State or political subdivision thereof; or

‘‘(2) an act in furtherance of the offense was committed in the United States.

‘‘§ 1838. Construction with other laws

‘‘This chapter shall not be construed to preempt or displace any other remedies, whether civil or criminal, provided by United States Federal, State, commonwealth, possession, or territory law for the misappropriation of a trade secret, or to affect the otherwise lawful disclosure of information by any Government employee under section 552 of title 5 (commonly known as the Freedom of Information Act).

‘‘§ 1839. Definitions

‘‘As used in this chapter—

‘‘(1) the term ‘foreign instrumentality’ means any agency, bureau, ministry, component, institution, association, or any legal, commercial, or business organization, corporation, firm, or entity that is substantially owned, controlled, sponsored, commanded, managed, or dominated by a foreign government;

‘‘(2) the term ‘foreign agent’ means any officer, employee, proxy, servant, delegate, or representative of a foreign government;

‘‘(3) 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, photo
graphically, 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; and ‘‘(4) the term ‘owner’, with respect to a trade secret, means

the person or entity in whom or in which rightful legal or
equitable title to, or license in, the trade secret is reposed.’’.

(b) CLERICAL AMENDMENT.—The table of chapters at the beginning part I of title 18, United States Code, is amended by inserting after the item relating to chapter 89 the following:

‘‘90. Protection of trade secrets ....................................................................... 1831’’.

(c) REPORTS.—Not later than 2 years and 4 years after the 42 USC 10604 date of the enactment of this Act, the Attorney General shall note. report to Congress on the amounts received and distributed from fines for offenses under this chapter deposited in the Crime Victims Fund established by section 1402 of the Victims of Crime Act of 1984 (42 U.S.C. 10601).

SEC. 102. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS.

Section 2516(1)(c) of title 18, United States Code, is amended by inserting ‘‘chapter 90 (relating to protection of trade secrets),’’ after ‘‘chapter 37 (relating to espionage),’’.

 

TITLE II—NATIONAL INFORMATION INFRASTRUCTURE PROTECTION ACT OF 1996

SEC. 201. COMPUTER CRIME.

Section 1030 of title 18, United States Code, is amended—

(1) in subsection (a)—

                (A) in paragraph (1)—

                (i) by striking ‘‘knowingly accesses’’ and inserting ‘‘having knowingly accessed’’;  

          (ii) by striking ‘‘exceeds’’ and inserting ‘‘exceeding’’;  

(iii) by striking ‘‘obtains information’’ and inserting ‘‘having obtained information’’;

(iv) by striking ‘‘the intent or’’;

                (v) by striking ‘‘is to be used’’ and inserting ‘‘could be used’’; and

                (vi) by inserting before the semicolon at the end the following: ‘‘willfully communicates, delivers, trans-mits, or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to  deliver it to the officer or employee of the United States entitled to receive it’’;

                (B) in paragraph (2)—

                (i) by striking ‘‘obtains information’’ and inserting ‘‘obtains— ‘‘(A) information’’; and

                (ii) by adding at the end the following new subparagraphs: ‘‘(B) information from any department or agency of the United States; or ‘‘(C) information from any protected computer if the conduct involved an interstate or foreign communication;’’;

                (C) in paragraph (3)—

                (i) by inserting ‘‘nonpublic’’ before ‘‘computer of a department or agency’’;

 

         (ii) by striking ‘‘adversely’’; and

(iii) by striking ‘‘the use of the Government’s operation of such computer’’ and inserting ‘‘that use by or for the Government of the United States’’;

                (D) in paragraph (4)—

                (i) by striking ‘‘Federal interest’’ and inserting ‘‘protected’’; and

                (ii) by inserting before the semicolon the following: ‘‘and the value of such use is not more than $5,000 in any 1-year period’’;

 

(E) by striking paragraph (5) and inserting the following: ‘‘(5)(A) knowingly causes the transmission of a program,

information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer;

‘‘(B) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or

‘‘(C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage;’’; and

 (F) by inserting after paragraph (6) the following new paragraph: ‘‘(7) with intent to extort from any person, firm, association,

educational institution, financial institution, government entity, or other legal entity, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to cause damage to a protected computer;’’;

                (2) in subsection (c)—

                (A) in paragraph (1), by striking ‘‘such subsection’’ each place that term appears and inserting ‘‘this section’’;

                (B) in paragraph (2)—

                (i) in subparagraph (A)—

                (I) by inserting ‘‘, (a)(5)(C),’’ after ‘‘(a)(3)’’; and

                (II) by striking ‘‘such subsection’’ and inserting ‘‘this section’’;

                (ii) by redesignating subparagraph (B) as subparagraph (C);

                (iii) by inserting immediately after subparagraph

                (A) the following:

 

‘‘(B) a fine under this title or imprisonment for not
more than 5 years, or both, in the case of an offense
under subsection (a)(2), if—

‘‘(i) the offense was committed for purposes of commercial advantage or private financial gain;

‘‘(ii) the offense was committed in furtherance of any criminal or tortuous act in violation of the Constitution or laws of the United States or of any State; or

‘‘(iii) the value of the information obtained exceeds $5,000;’’; and

                (iv) in subparagraph (C) (as redesignated)—

                (I) by striking ‘‘such subsection’’ and inserting ‘‘this section’’; and

 

(II) by adding ‘‘and’’ at the end;

                (C) in paragraph (3)—

                (i) in subparagraph (A)—

                (I) by striking ‘‘(a)(4) or (a)(5)(A)’’ and inserting ‘‘(a)(4), (a)(5)(A), (a)(5)(B), or (a)(7)’’; and

                (II) by striking ‘‘such subsection’’ and inserting ‘‘this section’’; and

                (ii) in subparagraph (B)—

                (I) by striking ‘‘(a)(4) or (a)(5)’’ and inserting ‘‘(a)(4), (a)(5)(A), (a)(5)(B), (a)(5)(C), or (a)(7)’’; and

                (II) by striking ‘‘such subsection’’ and inserting ‘‘this section’’; and

                (D) by striking paragraph (4);

 

(3) in subsection (d), by inserting ‘‘subsections (a)(2)(A), (a)(2)(B), (a)(3), (a)(4), (a)(5), and (a)(6) of’’ before ‘‘this section.’’;

(4) in subsection (e)—

                (A) in paragraph (2)—

                (i) by striking ‘‘Federal interest’’ and inserting ‘‘protected’’;

                (ii) in subparagraph (A), by striking ‘‘the use of the financial institution’s operation or the Government’s operation of such computer’’ and insert-ing ‘‘that use by or for the financial institution or the Government’’; and

 

(iii) by striking subparagraph (B) and inserting the following: ‘‘(B) which is used in interstate or foreign commerce

or communication;’’;

(B) in paragraph (6), by striking ‘‘and’’ at the end;

(C) in paragraph (7), by striking the period at the
end and inserting ‘‘; and’’; and

(D) by adding at the end the following new paragraphs:

‘‘(8) the term ‘damage’ means any impairment to the

integrity or availability of data, a program, a system, or

information, that— ‘‘(A) causes loss aggregating at least $5,000 in value during any 1-year period to one or more individuals; ‘‘(B) modifies or impairs, or potentially modifies or impairs, the medical examination, diagnosis, treatment, or care of one or more individuals;

‘‘(C) causes physical injury to any person; or
‘‘(D) threatens public health or safety; and

‘‘(9) the term ‘government entity’ includes the Government of the United States, any State or political subdivision of the United States, any foreign country, and any state, province, municipality, or other political subdivision of a foreign country.’’; and

                (5) in subsection (g)—

                (A) by striking ‘‘, other than a violation of subsection (a)(5)(B),’’; and

                (B) by striking ‘‘of any subsection other than subsection (a)(5)(A)(ii)(II)(bb) or (a)(5)(B)(ii)(II)(bb)’’ and inserting ‘‘involving damage as defined in subsection (e)(8)(A)’’.

 


TITLE V—USE OF CERTAIN TECHNOLOGY TO FACILITATE CRIMINAL CONDUCT

SEC. 501. USE OF CERTAIN TECHNOLOGY TO FACILITATE CRIMINAL 18 USC 3552 CONDUCT. note.

                (a) INFORMATION.—The Administrative Office of the United States courts shall establish policies and procedures for the inclusion in all presentence reports of information that specifically identifies and describes any use of encryption or scrambling technology that would be relevant to an enhancement under section 3C1.1 (dealing with Obstructing or Impeding the Administration of Justice) of the Sentencing Guidelines or to offense conduct under the Sentencing Guidelines.

                (b) COMPILING AND REPORT.—The United States Sentencing Commission shall—

                (1) compile and analyze any information contained in documentation described in subsection (a) relating to the use of
encryption or scrambling technology to facilitate or conceal criminal conduct; and

                (2) based on the information compiled and analyzed under
paragraph (1), annually report to the Congress on the nature
and extent of the use of encryption or scrambling technology
to facilitate or conceal criminal conduct.

 

 

Approved October 11, 1996.

LEGISLATIVE HISTORY—H.R. 3723 (S. 1331) (S. 1332):

HOUSE REPORTS: No. 104–788 (Comm. on the Judiciary).

CONGRESSIONAL RECORD, Vol. 142 (1996): Sept. 17, considered and passed House. Sept. 18, considered and passed Senate, amended. Sept. 28, House concurred in Senate amendment with an amendment. Oct. 2, Senate concurred in House amendment.

 

   
 

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