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19 Minnesota Journal of Law, Science & Technology 373 (2018)


The analysis undertaken in this chapter was prompted by two puzzles. First, since U.S. trade secret law was developed based upon the breach of confidence law of England, and the law of England does not recognize an acquisition by improper means theory of recovery except in rare and nascent circumstances, how and why did such a theory develop in the United States? Second, to the extent the acquisition by improper means prong of U.S. trade secret law (unlike its counterpart in England) is disconnected from a duty of confidence and should be thought of as a separate tort, what are its elements, including the definition of cognizable harm? These questions are important not only for an understanding of trade secret law in the United States, but also for the implementation of the EU Trade Secret Directive which borrows from U.S. law to include the "acquisition by improper means" prong of U.S trade secret law. They also relate to the debate concerning the harms caused by data breaches and whether the mere taking or misuse of personal information, like credit information, is a cognizable "injury-in-fact" under U.S. law.

This chapter proceeds in three parts. First, based upon historical research, it examines how the "acquisition by improper means" prong of U.S. trade secret law developed and how it became disconnected from the requirement of a subsequent disclosure or use of the trade secrets. This analysis begins in Section II with an overview of the laws of the United States that protect information. In Section III, the history of the "acquisition by improper means" prong of trade secret misappropriation is discussed, showing that it is undertheorized, particularly when the alleged wrongful acquisition is not connected to a duty of confidence or a subsequent disclosure or use of trade secrets. Third, in Section IV, the pros and cons of recognizing a separate wrongful acquisition tort are discussed, including observations concerning the inability of trade secret law to address all incidents of cyberhacking and how a standalone wrongful acquisition tort might be designed.