Corporate Spying: The Legal Aspects

William A. Zucker, Gadsby Hannah LLP

Scott Nathan, Independent Consultant

Introduction

A Series of Questions and a Hypothetical

The Common Law Remedies and Approaches

The Concept of Proprietary Rights: Trade Secrets

The Employee and the Concept of Fiduciary Duty

Trespass

Terms of Use

The Wiretap Act

Electronic Communications

The Contemporaneous Transmission Requirement

Konop v. Hawaiian Airlines, Inc.

The Stored Communications Act

Electronic Storage: Backup Files

Electronic Storage: Temporarily Stored Communications

The Computer Fraud and Abuse Act

Prohibited Behavior and Damages

Its Application to WebCrawling and Bots

Simple Preventive Measures

Economic Espionage Act of 1996

What Are Trade Secrets?

What About Multinationals?

The Digital Millennium Copyright Act

Circumventing Technology Measures

Exceptions to the Prohibitions on Technology Circumvention

Impact of Recent RIAA and Other Litigation

Corporate Spying on the Individual

Competing Interests: Businesses and Individuals

Electronic Surveillance and Privacy: Reasonable Expectations

Government Spying and Businesses: The USA PATRIOT Act

Terrorism and Financial Institutions

Compulsory and Voluntary Cooperation Between Business and Government

Conclusion

Glossary

Cross References

References

INTRODUCTION

When we think of spying, we think of James Bond or the characters in a John LeCarre novel. It is always covert. Its justifications are found in global national concerns and values. However, spying ...

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