“I’m from the government and I’m here to help.” Yeah, right.
Most businesses think protecting their intellectual property is their own responsibility, and it is. But what about when your intellectual property rights are violated by an evildoer? Who are you going to call? While your obvious choice will be the law firm sponsoring this blog, you might also be able to get help from your local prosecutor.
Both State Attorneys General and Federal Prosecutors have tools at their disposal that let them bring the full force of the government to your side—when they are motivated to do so. Speaking at a State Fraud & Prevention Summit in Atlanta recently, Georgia Attorney General Chris Carr announced how his office is available to take action on cybersecurity and data breach fraud cases, and he even pointed to several Assistant AGs in the audience who were there and ready to help. Carr said his state’s emphasis on protecting data privacy and security is enhanced by the U.S. Army recently announcing that its new Cyber Command Headquarters (ARCYBER) will be located in Georgia. Other states have similarly dedicated AGs ready to help, and sometimes you can even get local prosecutors to take interest in your case.
At the federal level, the Department of Justice (DOJ) has a “Computer Crime and Intellectual Property Section” (CCIPS) specifically devoted to combating white collar computer and intellectual property crimes. Indeed, the DOJ has several statutes at its disposal to combat such crimes. They include the Economic Espionage Act, 18 U.S.C. § 1831, the Theft of Trade Secrets Act, 18 U.S.C. § 1832, the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and the new Defend Trade Secrets Act of 2016 (“DTSA”). These laws provide punishments that include fines in the millions of dollars (which can be a multiple of the value of trade secrets stolen) and prison sentences ranging from 10–20 years to life under certain circumstances.
Whether or not white collar prosecutors will be motivated to help when your intellectual property is stolen depends on several things. These include the economic value of the loss, the potential value of the IP to the government (e.g., if it has military application), whether the IP was exported to foreign & restricted countries, the method by which the IP was stolen (e.g., by drones or hackers using methods which can be replicated with others), whether government prosecution will serve traditional prosecutorial purposes (e.g., deterrence), what efforts were taken to protect the property (e.g., what was done to keep trade secrets “secret”), and the strength of the evidence and difficulty of proof. Of course, federal prosecutors have competing priorities such as terrorism, violent crime, illegal immigration, organized crime, and drugs. Since U.S. Attorney General Sessions recently announced violent crime and immigration were high on his list, it may be a challenge for federal prosecutors with limited resources to give your intellectual property theft case the attention it deserves.
Since convincing the government to bring a white collar criminal case can be a big benefit to a victim of intellectual property theft, what can you do to help improve your chances of obtaining such assistance? One way is to help the government (state, local, or federal) understand the full scope and nature of the loss to your business. This can include showing the value of the IP to your business and what it would cost another business to replicate the IP. You can also show how a criminal prosecution will make white collar prosecutors look good and deter wrongdoing by others. For example, it may be important to prosecutors that they issue a press release showing how they are making the world a better and safer place by prosecuting the bad guys who victimized your company. If your business can withstand the scrutiny that press coverage like this can bring, then white collar prosecutors will be more likely to promote your case as an “example” that others shouldn’t even think about committing similar crimes—not on their watch.
There are several ways you can help the government see the weight of evidence that supports your case against the bad guys. For example, an internal investigation that uses trained investigators who prosecutors respect (e.g., former FBI agents) can give your case more credibility. A civil lawsuit can generate substantial documents and discovery through depositions and other civil litigation procedures which are not available to government prosecutors in a criminal prosecution. Simultaneous or successive investigation or litigation of civil and criminal cases based on a common set of facts are referred to as parallel proceedings. When evidence is gathered in civil proceedings and turned over to state or federal prosecutors in an organized fashion as part of a criminal referral, it makes it easier for prosecutors to see how the elements of their case can be proven beyond a reasonable doubt. By establishing your credibility and providing essential evidence that prosecutors need to prove their case, you will help them see the wisdom of using taxpayer resources to pursue your case for the good of “the people,” and not just for you and your business.
The pitch that is ultimately made to state or federal prosecutors as to why your case deserves their attention is best made by someone they trust. Former prosecutors and lawyers who prosecutors know are much more likely to get their attention. Many state and local prosecutors view themselves as “guardians of justice” who need to screen cases carefully, and federal prosecutors have formal written policies specifying factors to consider in deciding when to prosecute (see, e.g., the “Intake and Charging Policy for Computer Crime Matters” on the DOJ website). All these factors should be considered and taken into account when making a criminal referral. Finally, prosecutors need to hear the victim pledge its full cooperation to provide essential evidence and testimony when needed throughout the case, including when it may ultimately be called for trial.
Your local, state, or federal prosecutor may be indeed be there to help with your trade secret or IP theft case—if you are willing to help them first.