School Boy's Tricks: Reasonable Cybersecurity and the Panic of Law Creation

Abstract

This article discusses trade secrecy's "reasonable efforts" standard as applied in the Defend Trade Secrets Act, and more broadly in the context of cybersecurity. Moreover, it identifies a panic condition in law creation that often results in poorly-vetted law. It argues that the United States should reconsider whether it wants to treat today's sophisticated foreign cyberespionage the same way as we have treated yesterday's "school boy’s trick." Due to the fact that trade secrets cease to exist once they are publicly disclosed, it is better that trade secret information never be wrongful acquired, disclosed, or used in the first place. Therefore, U.S. industry would do well to focus its efforts on improved cybersecurity to prevent or contain trade secret losses, rather than litigation around the damage arising from its loss.

Keywords: trade secrets, innovation, cyberespionage, cybersecurity, intellectual property, reasonable efforts

JEL Classification: K1, L68, C8