Cyber-Espionage and Trade Agreements: An Ill-Fitting and Dangerous CombinationJeremy Malcolm Today we delve into this provision and its background in more depth. Why Trade Secrets, and Why Now? The US Trade Representatives sudden interest in trade secret protection arises largely from reports of widespread cyber-espionage against US companies emanating from China. This has also led to domestic proposals such as this years Defend Trade Secrets Act, introduced in the Senate in April, and its companion House bill, the Trade Secrets Protection Act, which would create a new federal private right of action for trade secret theft. In August this year, 31 law professors wrote a joint letter opposing these bills on a number of grounds, including that they are unbalanced, risking that they could be used for anti-competitive purposes, and that they have potential ancillary negative impacts on access to information. The professors write: Labeling information as a trade secret has become a common way to prevent public and even regulatory access to important information ranging from the composition of hydraulic fracturing fluids to the code inside of voting machines, all of which have compelling (but not uncontroversial) reasons for public access in a democracy. Even if these new US bills pass, their enforceability against foreigners will be, in practical terms, rather limited. The introduction of new language on trade secrets into both TTP and TTIPwhich may become the United States two largest trade agreementsis therefore a parallel tactic to address cyber-espionage on the global stage. (Observant readers might have spotted an apparent flaw in this plan, given that China will not be a party to either of these agreements. But the reasoning is that if enough other countries agree on new global standards, diplomatic pressure can be applied on China to also comply. As the Europeans have put it, The EU and the US also have a common interest in pursuing protection of trade secrets against misappropriation in third countries.) The language in the TPP, however, doesnt much resemble either of the current Congressional bills. This is because if the TPP is agreed, it will create an obligation on the US to ensure that it accords with domestic law, and the US Trade Representative is unable to guarantee that the bills currently in Congress will pass. Instead, the first paragraph is drawn from TRIPS, the multilateral treaty that sets a global minimum standard for so-called intellectual property protection, and the second and third paragraphs are brand new, but share lineage with both the Economic Espionage Act and the Computer Fraud and Abuse Act (CFAA). This is where things get complicatedbecause the legal theories, methods and objectives of those two sources are actually quite different. So beginning with paragraph 1: it very closely mirrors the language that TRIPS members (including all the TPP negotiating countries) have already agreed. It requires them to offer the means to prevent trade secrets from being disclosed to, acquired by, or used by others without consent in a manner contrary to honest commercial practices. This generally, as in the US, involves a private cause of action to be litigated in a civil court. Next, lets turn to paragraphs 2 and 3, which are worth setting out in full: These provisions are quite different from the first, because they make trade secret misappropriation a criminal offense. As noted above, these provisions partly draw on the US Economic Espionage Act. But they go considerably further, in that the offense is not required to be limited to cases where the owner is harmed and where someone else benefits from the trade secret misappropriation, both of which are conditions of the offense under current US law. They also add a new offense of unauthorized, willful access to a trade secret held in a computer system, regardless of whether the trade secret is copied or disclosed. This provision has more in common with the CFAA which criminalizes anyone who intentionally accesses a computer without authorizationand thereby obtainsinformation from any protected computerone of the provisions under which Aaron Swartz was charged. So in sum, these provisions go further than current US law, potentially criminalizing anyone who gains access to secret information of commercial value. There are no safeguards to protect investigative journalists, security researchers or whistleblowers, who may obtain access to information without criminal or commercial intent. The inevitable result will be to chill the speech of those who might otherwise have a valid public interest justification for releasing information that had been kept secret. The TPP and TTIP are, supposedly, free trade agreements; they are not the Cybercrime Convention. If this text were accepted, it would be the first time that a trade agreement would be used to criminalize those who obtain access to secret information held online, regardless of their motivation and without any public interest defenses. Like the rest of the IP chapterbut if anything, even more sothis goes far beyond the appropriate scope for an agreement that is being negotiated behind closed doors and away from public oversight. We dont know for sure that these paragraphs are included in the current TPP text, as the leaked text is several months old. It also contains the disclaimer, Parties are still reflecting on the new formulation for paragraphs 2 and 3. As such a spokesperson for the US Trade Representative has had the gall yesterday to strongly caution anyone from drawing premature conclusions of any kind based on supposed leaked text from unsubstantiated, unnamed sources, as if we had any more official source of information on which to draw. All we can say is that we had all better hope that these provisions dont make it into the final agreement, because they are amongst the most atrocious, overreaching and human-rights infringing provisions in the entire text of the TPP. Please visit EFF for the latest news in digital privacy and human rights. 