Theft of Trade Secret Prosecution

Question

Suppose a person is a citizen of country A, and he/she traveled to the US for a business trip visiting say, a mining plant. That person, whether or not he/she was told it was forbidden or not, takes 5 or so photos of the plant interior. The plant does not allow such photos.

These photos should not be considered as trade secrets, more just confidential information, however either way it was not an appropriate act.

Would this conduct be able to be prosecuted under 18 USC 1832? Keep in mind that the person is a citizen of a different country, A, where trade secrets are not of a criminal offense.

The 1832 section states that in order to be prosecuted, you must have committed something in the US, but it was only a few photos of the interior that doesn't exactly constitute as trade secrets.

Second, let's say this person were to communicate with fellow colleagues while employed, who are based in the US, from Canada, asking for confidential/trade secret information, would this conduct be fair to prosecute under 1832? Bear in mind that the offender himself/herself is physically located in country A.

Thanks for your opinions,

Answer 1

For the first part, if you're going to stipulate that the pictures are not trade secrets, then he can't be prosecuted for theft of trade secrets. But maybe they ARE trade secrets. Here's the definition:

the term “trade secret” means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, 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, another person who can obtain economic value from the disclosure or use of the information;

You say that it's "confidential" and that photos are not allowed, so (A) likely applies. If (B) also applies, then it IS a trade secret. The fact that the person is a citizen of a different country does not really matter, as they were here when the crime was committed.

Answer 2

If arrested in the US, anyone can be put on trial for anything unless they have diplomatic immunity.

If they are not in the US a warrant can be issued for their arrest if and when they return to the US.

The US can request extradition of the person from the country where they are located. This would be done in accordance with that country’s local laws and any extradition treaty they might have with the US. There are a number of reasons why extradition may be refused:

• some countries (e.g. Russia) do not allow their citizens to be extradited
• the punishment for the crime in the US is disproportionate to the local punishment. This includes a death penalty but could also just be based on a difference in maximum prison terms. This may be overcome by adequate assurances that punishment will be limited to the origin countries limits.
• The US cannot make a prima facie case: that is, on the evidence, a conviction is unlikely.
• The act is not unlawful in the origin country.
• The charges are politically rather than legally motivated.
• The origin country determines that the person would not receive a fair trial.
• politics and diplomacy.