Many scholars have demonstrated that labor mobility between firms has lead to the economic success of Silicon Valley. California‘s policy against enforcing covenants not to compete has been shown to provide the legal infrastructure for high labor mobility. Does the argument extend to mobility of skilled labor across national borders? This Article addresses that question in the context of the Economic Espionage Act of 1996, the first federal criminal trade secret law in the United States. By analyzing the scholarly literature and the case law under the Act, the author presents a theoretical framework for assessing the Act based on international trade theory. The Article concludes that there are policy reasons to be skeptical about the Act and several reforms could ease the potential chilling effect of the Act on the mobility of skilled labor. Such reforms include replacing the criminal provisions of the Act with a private civil cause of action and expanding extraterritorial application of both patent and trade secret laws.
Shubha Ghosh, Open Borders, Intellectual Property & Federal Criminal Trade Secret Law, 9 J. Marshall Rev. Intell. Prop. L. 24 (2009)