§ 1836. Civil proceedings

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1996

   Economic Espionage Act of 1996

   Pub. L. 104–294 title I § 101(a) · 110 Stat. 3488

   Enacted · 18 U.S.C. § 1836

   Added Pub. L. 104–294, title I, § 101(a), Oct. 11, 1996, 110 Stat. 3490

   Source evidence

   Code source credit
   Added Pub. L. 104–294, title I, § 101(a), Oct. 11, 1996, 110 Stat. 3490

   Enacted provision · exact public law section
   (a) In General.— Title 18, United States Code, is amended by inserting after chapter 89 the following: “CHAPTER 90— PROTECTION OF TRADE SECRETS “Sec. “1831. Economic espionage. “1832. Theft of trade secrets. “1833. Exceptions to prohibitions. “1834. Criminal forfeiture. “1835. Orders to preserve confidentiality. “1836. Civil proceedings to enjoin violations. “1837. Conduct outside the United States. “1838. Construction with other laws. “1839. Definitions. “§ 1831. Economic espionage “(a) In General.— Whoever, intending or knowing that the offense will benefit any foreign government, foreign instrumentality, or foreign agent, knowingly— “(1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains a trade secret; “(2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photo-copies, replicates, transmits, delivers, sends, mails, communicates, or conveys a trade secret; “(3) receives, buys, or possesses a trade secret, knowing the same to have been stolen or appropriated, obtained, or converted without authorization; “(4) attempts to commit any offense described in any of paragraphs (1) through (3); or “(5) conspires with one or more other persons to commit any offense described in any of paragraphs (1) through (3), and one or more of such persons do any act to effect the object of the conspiracy, shall, except as provided in subsection (b), be fined not more than $500,000 or imprisoned not more than 15 years, or both. “(b) Organizations.— Any organization that commits any offense described in subsection (a) shall be fined not more than $10,000,000. “§ 1832. Theft of trade secrets “(a) Whoever, with intent to convert a trade secret, that is related to or included in a product that is produced for or placed in interstate or foreign commerce, to the economic benefit of anyone other than the owner thereof, and intending or knowing that the offense will, injure any owner of that trade secret, knowingly— “(1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains such information; “(2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photo-copies, replicates, transmits, delivers, sends, mails, communicates, or conveys such information; “(3) receives, buys, or possesses such information, knowing the same to have been stolen or appropriated, obtained, or converted without authorization; “(4) attempts to commit any offense described in paragraphs (1) through (3); or “(5) conspires with one or more other persons to commit any offense described in paragraphs (1) through (3), and one or more of such persons do any act to effect the object of the conspiracy, shall, except as provided in subsection (b), be fined under this title or imprisoned not more than 10 years, or both. “(b) Any organization that commits any offense described in subsection (a) shall be fined not more than $5,000,000. “§ 1833. Exceptions to prohibitions “This chapter does not prohibit— “(1) any otherwise lawful activity conducted by a governmental entity of the United States, a State, or a political subdivision of a State; or “(2) the reporting of a suspected violation of law to any governmental entity of the United States, a State, or a political subdivision of a State, if such entity has lawful authority with respect to that violation. “§ 1834. Criminal forfeiture “(a) The court, in imposing sentence on a person for a violation of this chapter, shall order, in addition to any other sentence imposed, that the person forfeit to the United States— “(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and “(2) any of the person’s property used, or intended to be used, in any manner or part, to commit or facilitate the commission of such violation, if the court in its discretion so determines, taking into consideration the nature, scope, and proportionality of the use of the property in the offense. “(b) Property subject to forfeiture under this section, any seizure and disposition thereof, and any administrative or judicial proceeding in relation thereto, shall be governed by section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), except for subsections (d) and (j) of such section, which shall not apply to forfeitures under this section. “§ 1835. Orders to preserve confidentiality “In any prosecution or other proceeding under this chapter, the court shall enter such orders and take such other action as may be necessary and appropriate to preserve the confidentiality of trade secrets, consistent with the requirements of the Federal Rules of Criminal and Civil Procedure, the Federal Rules of Evidence, and all other applicable laws. An interlocutory appeal by the United States shall lie from a decision or order of a district court authorizing or directing the disclosure of any trade secret. “§ 1836. Civil proceedings to enjoin violations “(a) The Attorney General may, in a civil action, obtain appropriate injunctive relief against any violation of this section. “(b) The district courts of the United States shall have exclusive original jurisdiction of civil actions under this subsection. “§ 1837. Applicability to conduct outside the United States This chapter also applies to conduct occurring outside the United States if— “(1) the offender is a natural person who is a citizen or permanent resident alien of the United States, or an organization organized under the laws of the United States or a State or political subdivision thereof; or “(2) an act in furtherance of the offense was committed in the United States. “§ 1838. Construction with other laws “This chapter shall not be construed to preempt or displace any other remedies, whether civil or criminal, provided by United States Federal, State, commonwealth, possession, or territory law for the misappropriation of a trade secret, or to affect the otherwise lawful disclosure of information by any Government employee under section 552 of title 5 (commonly known as the Freedom of Information Act). “§ 1839. Definitions “As used in this chapter— “(1) the term ‘foreign instrumentality’ means any agency, bureau, ministry, component, institution, association, or any legal, commercial, or business organization, corporation, firm, or entity that is substantially owned, controlled, sponsored, commanded, managed, or dominated by a foreign government; “(2) the term ‘foreign agent’ means any officer, employee, proxy, servant, delegate, or representative of a foreign government; “(3) the term ‘trade secret’ means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compila-tions, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if— “(A) the owner thereof has taken reasonable measures to keep such information secret; and “(B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public; and “(4) the term ‘owner’, with respect to a trade secret, means the person or entity in whom or in which rightful legal or equitable title to, or license in, the trade secret is reposed.”,

2. 2002

   Criminal Law Technical Amendments Act of 2002

   Pub. L. 107–273 § 4002(e)(9)(A) · 116 Stat. 1758

   Substituted · 18 U.S.C. § 1836(a)

   Pub. L. 107–273, § 4002(e)(9)(A), substituted “this chapter” for “this section”

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 107–273, § 4002(e)(9)(A), substituted “this chapter” for “this section”.

   Enacted provision · exact public law section
   (A) in subsection (a), by striking “this section” and inserting “this chapter”; and

3. 2002

   Criminal Law Technical Amendments Act of 2002

   Pub. L. 107–273 § 4002(e)(9)(B) · 116 Stat. 1758

   Substituted · 18 U.S.C. § 1836(b)

   Pub. L. 107–273, § 4002(e)(9)(B), substituted “this section” for “this subsection”

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 107–273, § 4002(e)(9)(B), substituted “this section” for “this subsection”.

   Enacted provision · exact public law section
   (B) in subsection (b), by striking “this subsection” and inserting “this section”.

4. 2016

   Defend Trade Secrets Act of 2016

   Pub. L. 114–153 § 2(d)(1) · 130 Stat. 376

   Substituted · 18 U.S.C. § 1836

   Pub. L. 114–153, § 2(d)(1), substituted “Civil proceedings” for “Civil proceedings to enjoin violations” in section catchline

   Source evidence

   Code amendment note
   Pub. L. 114–153, § 2(d)(1), substituted “Civil proceedings” for “Civil proceedings to enjoin violations” in section catchline.

   Enacted provision · exact public law section
   (1) The section heading for section 1836 of title 18, United States Code, is amended to read as follows: “§ 1836. Civil proceedings” .

   Effective date note
   Amendment by Pub. L. 114–153 applicable with respect to any misappropriation of a trade secret (as defined in section 1839 of this title) for which any act occurs on or after May 11, 2016, see section 2(e) of Pub. L. 114–153, set out as a note under section 1833 of this title.

5. 2016

   Defend Trade Secrets Act of 2016

   Pub. L. 114–153 § 2(a) · 130 Stat. 376

   1. Added · 18 U.S.C. § 1836(b)(d)

      Pub. L. 114–153, § 2(a), added subsecs. (b) to (d)

   2. Struck · 18 U.S.C. § 1836(b)(d)

      Pub. L. 114–153, § 2(a), struck out former subsec. (b) which read as follows: “The district courts of the United States shall have exclusive original jurisdiction of civil actions under this section.”

   Source evidence

   Code amendment note
   Subsecs. (b) to (d). Pub. L. 114–153, § 2(a), added subsecs. (b) to (d) and struck out former subsec. (b) which read as follows: “The district courts of the United States shall have exclusive original jurisdiction of civil actions under this section.”

   Enacted provision · exact public law section
   (a) In General.— Section 1836 of title 18, United States Code, is amended by striking subsection (b) and inserting the following: “(b) Private Civil Actions.— “(1) In general.— An owner of a trade secret that is misappropriated may bring a civil action under this subsection if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce. “(2) Civil seizure.— “(A) In general.— “(i) Application.— Based on an affidavit or verified complaint satisfying the requirements of this paragraph, the court may, upon ex parte application but only in extraordinary circumstances, issue an order providing for the seizure of property necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action. “(ii) Requirements for issuing order.— The court may not grant an application under clause (i) unless the court finds that it clearly appears from specific facts that— “(I) an order issued pursuant to Rule 65 of the Federal Rules of Civil Procedure or another form of equitable relief would be inadequate to achieve the purpose of this paragraph because the party to which the order would be issued would evade, avoid, or otherwise not comply with such an order; “(II) an immediate and irreparable injury will occur if such seizure is not ordered; “(III) the harm to the applicant of denying the application outweighs the harm to the legitimate interests of the person against whom seizure would be ordered of granting the application and substantially outweighs the harm to any third parties who may be harmed by such seizure; “(IV) the applicant is likely to succeed in showing that— “(aa) the information is a trade secret; and “(bb) the person against whom seizure would be ordered— “(AA) misappropriated the trade secret of the applicant by improper means; or “(BB) conspired to use improper means to misappropriate the trade secret of the applicant; “(V) the person against whom seizure would be ordered has actual possession of— “(aa) the trade secret; and “(bb) any property to be seized; “(VI) the application describes with reasonable particularity the matter to be seized and, to the extent reasonable under the circumstances, identifies the location where the matter is to be seized; “(VII) the person against whom seizure would be ordered, or persons acting in concert with such person, would destroy, move, hide, or otherwise make such matter inaccessible to the court, if the applicant were to proceed on notice to such person; and “(VIII) the applicant has not publicized the requested seizure. “(B) Elements of order.— If an order is issued under subparagraph (A), it shall— “(i) set forth findings of fact and conclusions of law required for the order; “(ii) provide for the narrowest seizure of property necessary to achieve the purpose of this paragraph and direct that the seizure be conducted in a manner that minimizes any interruption of the business operations of third parties and, to the extent possible, does not interrupt the legitimate business operations of the person accused of misappropriating the trade secret; “(iii) (I) be accompanied by an order protecting the seized property from disclosure by prohibiting access by the applicant or the person against whom the order is directed, and prohibiting any copies, in whole or in part, of the seized property, to prevent undue damage to the party against whom the order has issued or others, until such parties have an opportunity to be heard in court; and “(II) provide that if access is granted by the court to the applicant or the person against whom the order is directed, the access shall be consistent with subparagraph (D); “(iv) provide guidance to the law enforcement officials executing the seizure that clearly delineates the scope of the authority of the officials, including— “(I) the hours during which the seizure may be executed; and “(II) whether force may be used to access locked areas; “(v) set a date for a hearing described in subparagraph (F) at the earliest possible time, and not later than 7 days after the order has issued, unless the party against whom the order is directed and others harmed by the order consent to another date for the hearing, except that a party against whom the order has issued or any person harmed by the order may move the court at any time to dissolve or modify the order after giving notice to the applicant who obtained the order; and “(vi) require the person obtaining the order to provide the security determined adequate by the court for the payment of the damages that any person may be entitled to recover as a result of a wrongful or excessive seizure or wrongful or excessive attempted seizure under this paragraph. “(C) Protection from publicity.— The court shall take appropriate action to protect the person against whom an order under this paragraph is directed from publicity, by or at the behest of the person obtaining the order, about such order and any seizure under such order. “(D) Materials in custody of court.— “(i) In general.— Any materials seized under this paragraph shall be taken into the custody of the court. The court shall secure the seized material from physical and electronic access during the seizure and while in the custody of the court. “(ii) Storage medium.— If the seized material includes a storage medium, or if the seized material is stored on a storage medium, the court shall prohibit the medium from being connected to a network or the Internet without the consent of both parties, until the hearing required under subparagraph (B)(v) and described in subparagraph (F). “(iii) Protection of confidentiality.— The court shall take appropriate measures to protect the confidentiality of seized materials that are unrelated to the trade secret information ordered seized pursuant to this paragraph unless the person against whom the order is entered consents to disclosure of the material. “(iv) Appointment of special master.— The court may appoint a special master to locate and isolate all misappropriated trade secret information and to facilitate the return of unrelated property and data to the person from whom the property was seized. The special master appointed by the court shall agree to be bound by a non-disclosure agreement approved by the court. “(E) Service of order.— The court shall order that service of a copy of the order under this paragraph, and the submissions of the applicant to obtain the order, shall be made by a Federal law enforcement officer who, upon making service, shall carry out the seizure under the order. The court may allow State or local law enforcement officials to participate, but may not permit the applicant or any agent of the applicant to participate in the seizure. Determination. At the request of law enforcement officials, the court may allow a technical expert who is unaffiliated with the applicant and who is bound by a court-approved non-disclosure agreement to participate in the seizure if the court determines that the participation of the expert will aid the efficient execution of and minimize the burden of the seizure. “(F) Seizure hearing.— “(i) Date.— A court that issues a seizure order shall hold a hearing on the date set by the court under subparagraph (B)(v). “(ii) Burden of proof.— At a hearing held under this subparagraph, the party who obtained the order under subparagraph (A) shall have the burden to prove the facts supporting the findings of fact and conclusions of law necessary to support the order. If the party fails to meet that burden, the seizure order shall be dissolved or modified appropriately. “(iii) Dissolution or modification of order.— A party against whom the order has been issued or any person harmed by the order may move the court at any time to dissolve or modify the order after giving notice to the party who obtained the order. “(iv) Discovery time limits.— The court may make such orders modifying the time limits for discovery under the Federal Rules of Civil Procedure as may be necessary to prevent the frustration of the purposes of a hearing under this subparagraph. “(G) Action for damage caused by wrongful seizure.— A person who suffers damage by reason of a wrongful or excessive seizure under this paragraph has a cause of action against the applicant for the order under which such seizure was made, and shall be entitled to the same relief as is provided under section 34(d)(11) of the Trademark Act of 1946 (15 U.S.C. 1116(d)(11)). The security posted with the court under subparagraph (B)(vi) shall not limit the recovery of third parties for damages. “(H) Motion for encryption.— A party or a person who claims to have an interest in the subject matter seized may make a motion at any time, which may be heard ex parte, to encrypt any material seized or to be seized under this paragraph that is stored on a storage medium. The motion shall include, when possible, the desired encryption method. “(3) Remedies.— In a civil action brought under this subsection with respect to the misappropriation of a trade secret, a court may— “(A) grant an injunction— “(i) to prevent any actual or threatened misappropriation described in paragraph (1) on such terms as the court deems reasonable, provided the order does not— “(I) prevent a person from entering into an employment relationship, and that conditions placed on such employment shall be based on evidence of threatened misappropriation and not merely on the information the person knows; or “(II) otherwise conflict with an applicable State law prohibiting restraints on the practice of a lawful profession, trade, or business; “(ii) if determined appropriate by the court, requiring affirmative actions to be taken to protect the trade secret; and “(iii) in exceptional circumstances that render an injunction inequitable, that conditions future use of the trade secret upon payment of a reasonable royalty for no longer than the period of time for which such use could have been prohibited; “(B) award— “(i) (I) damages for actual loss caused by the misappropriation of the trade secret; and “(II) damages for any unjust enrichment caused by the misappropriation of the trade secret that is not addressed in computing damages for actual loss; or “(ii) in lieu of damages measured by any other methods, the damages caused by the misappropriation measured by imposition of liability for a reasonable royalty for the misappropriator’s unauthorized disclosure or use of the trade secret; “(C) if the trade secret is willfully and maliciously misappropriated, award exemplary damages in an amount not more than 2 times the amount of the damages awarded under subparagraph (B); and “(D) if a claim of the misappropriation is made in bad faith, which may be established by circumstantial evidence, a motion to terminate an injunction is made or opposed in bad faith, or the trade secret was willfully and maliciously misappropriated, award reasonable attorney’s fees to the prevailing party. “(c) Jurisdiction.— The district courts of the United States shall have original jurisdiction of civil actions brought under this section. “(d) Period of Limitations.— A civil action under subsection (b) may not be commenced later than 3 years after the date on which the misappropriation with respect to which the action would relate is discovered or by the exercise of reasonable diligence should have been discovered. For purposes of this subsection, a continuing misappropriation constitutes a single claim of misappropriation.” .

   Effective date note
   Amendment by Pub. L. 114–153 applicable with respect to any misappropriation of a trade secret (as defined in section 1839 of this title) for which any act occurs on or after May 11, 2016, see section 2(e) of Pub. L. 114–153, set out as a note under section 1833 of this title.

6 of 6 references resolved to an enrolled provision