USA Law and Practice Contributed by: Claudia Ray, Joseph Loy, Brandon R. Weber and Andrew (Keum Yong) Lee, Kirkland & Ellis LLP
2.4 Industrial Espionage When a company possesses valuable confiden - tial information, industrial espionage is a likely threat. Companies should take as many secu - rity measures as practically feasible to restrict access to trade secrets and confidential infor - mation. Even internally, the trade secrets should only be available to a limited number of need-to- know employees, and those employees should frequently be reminded of the confidential nature of the trade secret and be required to sign non- disclosure agreements. If an individual commits an act of industrial espionage, they may be subject to criminal prosecution under the EEA (18 USC Sections 1831–1839), which provides a cause of action against domestic and foreign misappropriation of trade secrets. The Federal Bureau of Investigation’s Economic Espionage Unit can investigate instances of trade secret theft. There are dedicated units in the US Attorney’s Offices that have the ability to prosecute trade secret espionage. 3. Preventing Trade Secret Misappropriation 3.1 Best Practices for Safeguarding Trade Secrets Common approaches for safeguarding trade secrets include physical, technological and per - sonnel-related means, as follows. Physical steps: • building access controls; • ID security check; • security guard monitoring; • visitor logs; • supervised tours; and
• labelling confidential information. Technological protection: • dedicated VPN networks; • password protection; • multifactor authentication; • access and security audits; • penetration testing; • spam and phishing email filters; and • mobile device management software. Personnel:
• pre-employment screening including determining whether new hires are subject to any non-compete agreements; • training; • employee handbook that describes the policies on confidentiality and trade secrets; and • non-disclosure agreements for each new hire, visitor and third-party vendor/consultant. 3.2 Exit Interviews It can be useful for an employer to conduct exit interviews of departing employees. Such inter - views often incorporate some or all of the fol - lowing: • reminding the employee not to disclose any trade secret information; • reminding the employee to return all company prop- erty, including badges, access cards and electronic devices such as laptops or cell phones; • asking the employee about the nature of their new position, such as any responsibilities, the name of the new employer and the new employer’s address (although the employee does not have to provide such information); • asking the employee if they have returned or destroyed electronic and physical copies of company materials; • asking the employee to sign an affidavit of com - pliance or a written statement that they will not
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