RATs, TRAPs, and Trade Secrets

Abstract

Technology has facilitated both the amount of trade secrets that are now stored electronically, and the rise of cyber intrusions. Together, this has created a storm perfectly ripe for economic espionage. Cases involving unknown or anonymous offenders who may not be in the United States and who steal trade secrets using remote access tools (“RATs”) are especially problematic. This Article is the first to address and place trade secret misappropriation within the larger backdrop of cybersecurity. First, it argues that systemic issues related to technology will continue to make legislative and judicial solutions suboptimal for cyber misappropriation. Second, it explores how the rhetoric of war has infiltrated the national discourse on cybersecurity and cyber misappropriation. Third, the Article introduces and coins the acronym TRAP. Standing for “technologically responsive active protection,” TRAP serves as a guiding principle to further refine the reasonable efforts requirement for the protection of trade secrets. The Article also critically examines such active defense counterstrike techniques as hacking back and the controversy surrounding this potential strategy.