1126
18 U.S.C. § 1831 Element TwoThe Defendant
Knew
the Information Was Proprietary
|
Section 1831 contains two distinct mental state requirements. The
first of these is that the defendant's misappropriation was done
"knowingly."
Thus, the government must show that the defendant knew or had a firm belief
that
the information he or she was taking was proprietary. 142 Cong. Rec. at
S12213
(daily ed. Oct. 2, 1996). Generally, under criminal statutes covering the
theft
of tangible property, the government must prove that the thief knew that the
object he stole was property that he had no lawful right to convert to his
personal use. Applying this same principle to this statute, in order for
the
defendant to be convicted, the government must establish that the defendant
was
aware or substantially certain that he was misappropriating a trade secret.
Thus, a person who takes a trade secret because of ignorance, mistake or
accident
cannot be prosecuted under § 1831. The legislative history goes on to
suggest that:
[t]his requirement should not prove to be a great
barrier to
legitimate and warranted prosecutions. Most companies go to considerable
pains
to protect their trade secrets. Documents are marked proprietary; security
measures put in place; and employees often sign confidentiality agreements
to
ensure that the theft of intangible information is prohibited in the same
way
that the theft of physical items are protected.
Id.
[cited in Criminal Resource Manual 1131; USAM 9-59.100] | |