Amendment (11) to the Criminal Law adds the crime of stealing, espionage, buying, or illegally providing trade secrets abroad, making up for the shortcomings of the original criminal law system in regulating economic espionage. The United States was the first country to regulate economic espionage as an independent crime, and its legislation and practice are objectively in the forefront of international trade secret protection. The mainland should accurately grasp the dual legal nature of economic espionage and standardize the interpretation of the elements of this crime accordingly. In the context of the economic espionage network, a multi-level and focused trade secret protection system with public-private cooperation as the core should be established, and a mechanism for the extraterritorial application of trade secret criminal norms should be established through diplomacy and the establishment of a mechanism for the extraterritorial application of trade secret criminal norms, so as to effectively provide a strong guarantee for the international development of mainland enterprises.
I. Formulation of the problem
As an important part of intellectual property rights, trade secrets have become a key part of economic security. In 2020, the number of economic and financial espionage cases cracked by the national security authorities was seven times that of five years ago, indicating that economic espionage activities against China have become more frequent in recent years. In order to improve the situation in which the current law is ineffective in combating economic espionage, Article 23 of the 11th Amendment to the Criminal Law adds the crime of stealing, espionage, buying, and illegally providing trade secrets from abroad, making it an independent crime, and the statutory penalty is significantly higher than that for ordinary crimes of infringing on trade secrets. The Opinions of the Supreme People's Procuratorate on Comprehensively Strengthening Intellectual Property Prosecution in the New Era, issued on February 28, 2022, further emphasizes the protection of trade secrets, calling for intensifying the crackdown on the crimes of stealing, espionage, buying, and illegally providing trade secrets to foreign institutions, organizations, and individuals, and proposes to strengthen research on trade secret infringement and grasp the characteristics and laws of trade secret infringement cases.
Compared with the late start of trade secret criminal legislation in the mainland, as early as 1996, when the Economic Espionage Law was enacted, the United States regulated the crime of infringing on trade secrets as "economic espionage" and "theft of trade secrets", which was the first case in the world. In addition, the law also set a legislative precedent for the extraterritorial application of trade secret law, reflecting the international vision of the United States to protect trade secrets, and subsequently revised and improved the criminal legal system of trade secrets through the 2012 Economic Espionage Aggravated Punishment Act and the 2016 Trade Secret Protection Act. However, the mainland has long focused on traditional trade secret infringement, and has not paid enough attention to economic espionage and lacked research. Therefore, by actively examining the mechanisms of the times in US law and reflecting on their lessons and lessons, we should improve the mainland's economic espionage regulatory system, and at the same time build a mechanism to deal with groundless accusations and sanctions, so as to meet the needs of the times for safeguarding national economic security and ensure the competitiveness of mainland enterprises in the global market.
II. Normative Interpretation of the Crime of Economic Espionage in the United States
In the context of linking national security threats to commercial attacks on U.S. businesses, the U.S. created two federal offenses related to trade secret infringement in the Economic Espionage Act — economic espionage and trade secret theft. The crime of stealing trade secrets is a general provision, while the crime of economic espionage adds the subjective element of "benefiting foreign governments" to the act of stealing trade secrets, and imposes more severe penalties on such acts, aiming to crack down on economic espionage activities promoted by foreign governments to steal key technologies, data and information from U.S. companies through various means.
(1) Objective aspects of the crime
The types of acts committed against economic espionage are detailed in Section 1831(a) of the United States Code, which are: (1) stealing, or unauthorized appropriation, acquisition, transportation, concealment, or obtaining of trade secrets through fraud, subterfuge, or deception; Receiving, purchasing, or possessing without unauthorized acquisition or unauthorized transmission. The acts provided for in the provisions can be summarized into three types: (1) obtaining trade secrets through improper means, (2) obtaining or transmitting trade secrets through lawful means but without authorization, and (3) obtaining trade secrets from a third party even though they are aware that the third party has obtained the trade secrets through the first two acts. The 2016 Trade Secret Protection Law amends the 1996 Economic Espionage Law by adding explanations of "infringement" and "improper means" in the "Definition of Relevant Terms" section of Article 1839, clarifying that the objective aspects of the crime of economic espionage include illegal acquisition, illegal use and illegal disclosure, and excluding the possibility of criminalizing the acquisition of the same trade secrets through reverse engineering, independent research and development, or other lawful means. In addition, the provisions list the two types of "intent to commit economic espionage" and "conspiracy to commit economic espionage and one or more of them have taken action to promote the achievement of the goal", emphasizing that intent and accomplice should also be convicted and punished as economic espionage.
(2) The subjective aspect of the crime
The subjective aspect of the crime of economic espionage is "deliberate or deliberate" for the benefit of a foreign government, a foreign agency, and agents of a foreign government. The requirement that the foreign institution be substantially owned or controlled by the foreign government shows that the counterparty, whether an institution or an individual, should have a certain political nature and have a considerable degree of connection with the foreign government. While there is no definition of "substantial" in the provision, the U.S. Department of Justice believes that the term "substantial" indicates that the prosecution does not have to prove complete government ownership, control, or management of the institution. It is worth noting that the establishment of this crime does not require the prosecution to prove whether the foreign government was involved, nor does it require proof that the perpetrator or other recipients actually used the trade secret or obtained benefits therefrom, but only need to prove that the perpetrator had the intention to "benefit the foreign government, the foreign agency and the agents of the foreign government". The type of benefit is not limited to economic benefits, but can also be reputational, strategic, or tactical advantages. Negligent disclosure of trade secrets to a foreign government is not subject to the penalty for economic espionage, but if the elements of the crime of stealing a trade secret under Section 1982 of the United States Code are met, the crime of stealing trade secrets is convicted and the penalty may be increased.
(3) Establishment of criminal punishments
The penalties for the crime of economic espionage include imprisonment and fines. An individual who commits an offence of economic espionage is liable to imprisonment for up to 15 years and/or a fine of up to $5 million. An organization that commits the crime of economic espionage is liable to a fine of up to US$10 million, or three times the value of the infringed trade secret (including the cost of research design and the cost of reproducing the trade secret). In addition, the court may confiscate property obtained as a result of the offence, property interests and property used or attempted to be used in the commission of the offence and may require the offender to pay compensation to the victim.
The 2012 Economic Espionage Aggravated Punishment Act increased the maximum fine for economic espionage from US$500,000 to US$5 million for individual crimes, and added a multiplier penalty rule for organized crimes. In addition, the law requires that the Federal Sentencing Guidelines be revised in light of the harmfulness of economic espionage. After an investigation, the U.S. Sentencing Board found that passing on stolen trade secrets outside the U.S. creates significant barriers to investigation and prosecution, and that effective civil remedies are not readily available to victims. This also greatly increases the risk that the trade secret will be exploited by foreign competitors, seriously threatening the global competitiveness of the United States and the national economic security. As a result, the U.S. Sentencing Board decided to revise the sentencing guidelines applicable to theft and fraud, including violations of the Economic Espionage Act: to increase the level of offense by two if the offense involves the theft of trade secrets and the offender knows that the trade secrets will be transported or disseminated abroad, and by four if the offense would benefit a foreign government, foreign agency, or foreign agent, with a minimum offense of 14. The 2016 Trade Secret Protection Law added the crime of economic espionage to the offence under the Anti-Extortion and Bribery Organic Law to further strengthen the penalties.
(4) Extraterritorial effect
In view of the fact that economic espionage has caused heavy losses to U.S. companies, in order to ensure that the trade secrets of U.S. companies are effectively and comprehensively protected, the Economic Espionage Law clarifies that its scope of effect can be applied to acts outside the United States, thus setting a legislative precedent for the extraterritorial application of trade secret criminal law. The provision establishes two types of nexus at which economic espionage laws may apply to acts committed outside the United States: the first is where the offender is a U.S. citizen, an alien with permanent U.S. residency, or an organization established under the laws and regulations of the U.S. federal, state, or administrative districts; Facilitation may include any person or entity that refers to the United States, such as sending e-mails to a counterparty in the United States, entering into a contract with a U.S. business, or interviewing potential employees affiliated with a U.S. company. The establishment of this extraterritorial effect rule reflects the intention of the United States to expand the extraterritorial jurisdiction of its trade secret criminal law through the principle of minimum connection in order to combat trade secret crimes against the United States on a global scale.
3. Review of U.S. economic espionage regulations
As the first country to enact special legislation on economic espionage, the United States has provided a relatively comprehensive criminal legal system for the protection of trade secrets, such as detailed design of charges and statutory penalties, etc., and has continuously revised them since 1996 to meet the new needs of trade secret protection. However, we should also be aware of the problems in the regulation of economic espionage in the United States.
(1) Normative level: Misuse of traditional espionage models has led to restrictions on regulation
In stark contrast to the U.S. Congress's claim that economic espionage is widespread, the Department of Justice handles very few economic espionage cases and closes them more often through plea bargains. The FBI deputy also said in his congressional report that it would be difficult to prove that a lawsuit under Section 1831 "economic espionage" would be difficult to prove compared to Section 1832 "theft of trade secrets." The element of responsibility required for the crime of economic espionage is "to benefit a foreign government, a foreign agency, and an agent of a foreign government", which is difficult to prove in practice. The beneficiaries of stolen trade secrets can be traced back to overseas entities, but it is difficult to obtain evidence to prove the entity's relationship with foreign governments, which involves not only the availability and validity of foreign evidence and witnesses, but also the existence of confidential or sensitive information to prove that the actor has ties to foreign countries, and diplomatic issues.
The fundamental reason for the above problems is that the United States regards economic espionage as a "new form of traditional espionage", and when enacting the legislation, it takes "for the benefit of foreign governments" as a necessary factor for the establishment of the crime of economic espionage, and gives it strong political considerations, placing too much emphasis on the national security guarantee mechanism and ignoring the economic nature of the trade secret protection mechanism itself. Economic espionage is different from traditional espionage in that the object of its infringement, trade secrets, has the characteristics of private ownership, and the acquisition of trade secrets has a certain driving force of interests in the business activities of private entities. Therefore, any individual or organization at home or abroad can obtain, disclose or use trade secrets in unauthorized means for the purpose of obtaining commercial benefits, and it is likely that they have no intention of subjectively seeking benefits for the foreign government, but objectively have an adverse impact on the economic competitiveness of the country. Even if it is supported by a foreign government and subjectively has the purpose of seeking profit for the foreign government, due to the influence of the private nature of the trade secret, the support is likely to be indirect, and the method is no different from the way that a private entity infringes on ordinary trade secrets. Therefore, taking "for the benefit of foreign governments, foreign institutions, and agents of foreign governments" as the element of responsibility for the crime of economic espionage violates the private nature and economy of the targets of economic espionage and unreasonably restricts the scope of regulation of the crime of economic espionage.
(2) Judicial level: Overemphasis on national security leads to generalization of application
Due to the misuse of the traditional espionage model, the Economic Espionage Law improperly sets the element of responsibility "for the benefit of foreign governments, foreign institutions, and agents of foreign governments" in the subjective composition of the crime of economic espionage, resulting in its application being contrary to the legislative purpose of "regulating widespread economic espionage to protect national security". In order to achieve the goal of legislation, the judiciary has gone to the other extreme, greatly lowering the standard of proof for the prosecution in proving the establishment of a crime, resulting in the generalization of the crime of economic espionage in the application of the law, and hindering the normal flow of talents and information exchange.
The judicial generalization of economic espionage crimes in the United States is mainly reflected in the low standards for the identification of intent and conspiracy. Generally speaking, the information stolen by the defendant must be a real trade secret, but in the judiciary, in order to prove that it constitutes an intent or conspiracy, it is only necessary to prove that the individual or organization intended to steal the trade secret or conspiracy, and to take positive action to achieve it, and the existence of the trade secret has no effect on the conviction. In United States v. In the HSU case, the defense demanded that the prosecution release documents to prove the existence of actual trade secrets, and argued that if the government used non-trade secret information in a police trap operation, the defendant would not be guilty of a crime because it was legally impossible. The prosecution argued that even if the documents were blank, the defendant still constituted an intent and an accomplice. The district court upheld the defense's arguments, but the Court of Appeals held that the Espionage Act sought to provide a comprehensive mechanism to reduce the escalating threat of economic espionage and commercial espionage, and ultimately supported the prosecution's argument. The culpability of the intended crime depends on the subjective perception of the situation, not on the actual situation. In the case of an accomplice, the judiciary considers the conspiracy to be an event sufficient to pose a threat to social order, regardless of whether the crime of the conspiracy actually occurred, and even if the crime of the conspiracy was objectively impossible to achieve in the first place, the conviction of the conspiracy itself or the pursuit of the purpose of the conspiracy is permitted. It can be seen that the lowering of the threshold of proof of the elements of constitution in the judiciary has led to the regulatory function of the crime of economic espionage being too pre-emptive, and the scope of punishment has been excessively expanded.
In addition, in the context of overemphasizing national security, the adjudication of this crime is full of randomness, and the process of judicial determination has actually evolved into a "self-verification game" for the US Department of Justice to make accusations. In the case of individual cases, where the charges do not state that the technology involved in the case is classified or subject to export controls, the prosecution emphasizes the importance of this technology to China's high-level development and the impact it will have on U.S. national security rather than proving that the crime is constituted. The focus in this case has clearly shifted away from trade secrets per se, and the focus on these technologies could allow China to develop the ability to manufacture certain computer chips on its own. In addition, the U.S. equates trade secrets with national security, and under the influence of U.S.-first foreign policy, economic espionage laws are increasingly alienated as a legal tool for the U.S. to contain the development of other countries.
(3) Law enforcement level: The network of economic espionage has caused operational problems
With the advent of the Internet era, the battlefield of economic espionage has shifted from physical space to cyberspace, and the traditional way of stealing trade secrets is mostly limited by practical dimensions such as distance and scale, but cyberspace has greatly changed the mode of information collection. Different from the original simple use of computers as a transnational communication tool, with the deepening of the Internet age, electronic intrusion has become a key mode of economic espionage. As a result, economic espionage activities are hidden, difficult to capture, and difficult to trace the source, and the potential rewards are multiplied while reducing the risk of the perpetrator. The use of cyber technology allows foreign individuals or organizations to carry out theft activities within their own borders without entering the United States, creating a series of law enforcement challenges.
First of all, the use of the Internet to steal trade secrets is difficult to detect and depends on the cooperation of trade secret holders, but many victim companies are reluctant to report to the government that their trade secrets have been attacked, and it is even difficult for them to realize the fact that they have been compromised. Second, cross-regional and cross-border crimes make evidence more scattered, and rights holders are reluctant to provide detailed evidence for fear of secondary leakage, which further aggravates the difficulty of obtaining evidence. In addition, even if evidence is obtained, it is difficult to attribute electronic intrusion to a specific individual or to infer government support for it, and it is difficult to extradite the perpetrator if he or she is abroad. In such a situation, once the trade secret is stolen, it is difficult for the company to find effective remedies.
In response to the new changes in economic espionage, the United States has developed a series of countermeasures. Law enforcement began to prioritize cooperation with businesses, issuing general guidance on corporate cybersecurity, requiring companies to make "reasonable efforts" to protect their trade secrets: taking physical and electronic measures to protect their trade secrets from hacking and other forms of economic espionage, and requiring regular review and updating of preservation media, and timely reporting to law enforcement if any abnormalities are found. In addition, the United States has explicitly opened up non-judicial applications for possible economic espionage in addition to criminal proceedings for economic espionage. Section 337 of the U.S. Tariff Act authorizes the U.S. International Trade Commission to prohibit the entry into the United States of goods using stolen trade secrets. If an individual or enterprise is suspected of economic espionage and does not need to be reviewed and prosecuted by the prosecutor, the Ministry of Commerce or the Ministry of Finance may directly impose trade restrictions and economic sanctions on the relevant entity.
Fourth, the improvement of the mainland's economic espionage regulations
Strengthening the criminal protection of trade secrets has become a common choice for all countries in the world in the era of knowledge economy. Article 23 of the Amendment (11) to the Criminal Law of the People's Republic of China adds an article after Article 219 of the Criminal Law, which is the crime of stealing, espionage, buying and illegally providing trade secrets for abroad. This crime distinguishes between the traditional infringement of trade secrets and economic espionage, making up for the lack of crackdown on such crimes in the mainland criminal law. The U.S. economic espionage legislation and its practice are objectively in the forefront of international trade secret protection, and referring to the lessons learned from the construction of its legislative system and practice, it can help the mainland better improve the criminal legal system of economic espionage and establish a more comprehensive criminal law protection system for trade secrets. In addition, in the face of the escalation of China's economic espionage threat by the United States, as well as the false accusations and sanctions against Chinese companies based on it, the mainland should respond in a timely manner on the basis of understanding its regulatory system.
(1) Accurately grasp the dual legal nature of economic espionage
Economic espionage has a dual legal nature, including the private nature of the target and the national nature of the interest, and ignoring either of the two will lead to a misunderstanding of economic espionage. From the perspective of national security, the United States has given strong political considerations to the crime of economic espionage, requiring that the supply of benefits must be related to foreign governments, ignoring the private nature of the infringing targets, resulting in undue restrictions on the application of the crime. In practice, in order to achieve the goal of ensuring the leading position of the US economy and technology, the constituent elements of this crime have been alienated in the judiciary, and eventually become a legal tool for the United States to unduly restrict the development of other countries.
Compared with the "foreign government" element emphasized in the crime of economic espionage in the United States, the scope of application of "institutions, organizations and personnel outside the country" stipulated in the mainland article is more extensive, including overseas institutions, Organizations and their branches (representatives) and branch organizations established within the territory of the People's Republic of China, together with the main positioning of overseas personnel, have achieved multi-subject coverage from official institutions to non-official institutions and individuals. It can be seen that the mainland's criminal law on economic espionage does not emphasize that it must be related to foreign governments. From the fact that the mainland stipulates this crime in the chapter on the crime of undermining the order of the socialist market economy and places it after the crime of infringing on trade secrets, it can be seen that the mainland's legislation takes into account the private nature of the target of economic espionage, pays attention to the similarity between the crime of economic espionage and the crime of ordinary trade secrets, and defines the crime of economic espionage from the perspective of the latter, so as to avoid falling into the misunderstanding of the "traditional espionage model", but the legislation does not ignore the threat to national economic security that may be caused by its "foreign-related nature". Once a trade secret flows abroad, it is difficult to recover, the cost of remediation is high, and it is likely to bring heavy losses to enterprises and the state.
The advantage of such legislation is to prevent undue narrowing of the scope of penalties and to further prove that the infringement of trade secrets is linked to damage to national economic security. The setting of offenders puts the starting point of criminal law intervention forward, and includes some behaviors that have not yet caused actual losses, but may lead to major economic losses if they continue to develop, into the scope of the criminal law system. This is conducive to striking hard at acts that infringe on the mainland's economic security, promptly and effectively protecting the business interests of the mainland's private entities and the stability of the social and economic order, and at the same time having a deterrent effect on potential unstable factors. In the context of economic globalization, economic and trade exchanges between countries are becoming more frequent and more closely linked, and when applying this crime, we should adopt a cautious attitude to prevent the criminal circle from being unduly expanded due to the low criminal threshold, and to avoid having a negative impact on the normal international exchange of information and the flow of talents.
(2) Pay attention to the standardized interpretation of the meaning of the clauses
The crime of stealing, espionage, buying, and illegally providing trade secrets abroad is a new crime of intellectual property crimes, and in order to avoid deviations in the judiciary, it is necessary to standardize and elaborate on the key elements and provide clear guidance for the application of the law applicable to this crime.
1. Definition of mode of conduct
This crime is a selective crime, and the article lists four modes of conduct, which are used for "espionage acts" such as state secrets, intelligence, and military secrets in the mainland criminal law, and the Criminal Law Amendment (11) expands such acts to the field of trade secrets, so that the conduct methods of economic espionage are consistent with the existing "espionage acts". Although the enumeration of acts in this crime is not as detailed as the crime of infringement of trade secrets, it can also be explained to cover basic illegal acts. For example, "theft" includes means such as "theft" and "electronic intrusion" in the crime of infringing on trade secrets, that is, unauthorized access, possession or reproduction of documents, items, materials, raw materials or electronic data under the control of the right holder that contain trade secrets or from which trade secrets can be recovered or derived, as well as the unauthorized or unauthorized use of computer information systems to steal trade secrets. "Bribery" is different from the crime of corruption and bribery, which limits the type of benefits to property or property interests, and it may also include non-property interests.
It should be noted that the core characteristics of the three types of illegal acquisition behaviors, such as stealing, espionage, and bribery, are the impropriety of their means, especially in the determination of "bribery". Because trade secrets have a certain market nature and are transferable if they are not illegal, if they are obtained or known through lawful channels, even if the perpetrator has the subjective purpose of providing them abroad, it does not constitute an act of bribery under this crime. However, if the commercial secrets involved are related to national security and interests, and are purchased for the purpose of providing them to foreign entities, they may be convicted and punished for the crime of stealing, espionage, buying, or illegally providing state secrets abroad in accordance with Article 5 of the Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Cases of Stealing, Spying, Buying, or Illegally Providing State Secrets Abroad. If the perpetrator has lawfully obtained or learned of the trade secrets of others and then illegally provided them to a foreign entity, the illegal provision in this crime has been satisfied, and if they have already made contact with the foreign entity or have made substantial efforts but were unsuccessful, they may be punished as an attempt to this crime.
2. Determination of Subjective Elements
This crime is an intentional crime, and the content of the perpetrator's knowledge includes two aspects: first, he clearly knew or should have known that the object of the infringement was a commercial secret, and second, he knew or should have known that the recipient of the commercial secret was a foreign institution, organization, or person. If knowledge of the latter cannot be proved, it can only be convicted and punished for the crime of infringing trade secrets. If the perpetrator discloses trade secrets through social networks and other media, the perpetrator does not necessarily constitute this crime, but if it is disclosed in overseas online and other media, it can be inferred that the perpetrator has the subjective intention to provide them abroad, and this crime may be convicted. If the perpetrator subjectively does not have the intention to provide the trade secrets abroad, and the disclosure is made in the territory and the foreign entity obtains the trade secrets thereof, it does not constitute this crime, but his conduct has already satisfied the disclosure in the crime of infringing on trade secrets, the crime of infringing on trade secrets may be punished heavily. Although with the development of the Internet, there is a great possibility that the domestic network will be obtained by foreign entities, there is still a certain gap between this and the subjective malice of intentional disclosure abroad, and it is not appropriate to equate the possibility of overseas acquisition with the intention to provide abroad, and the treatment of this act as the crime of infringement of trade secrets is more in line with the existing legal provisions.
3. Determination of serious circumstances
Compared with ordinary trade secret crimes, the statutory penalty for this crime has been greatly increased, and the severity of the punishment is obvious. The seriousness of the circumstances is a condition for the aggravation of punishment for this crime, but there is currently no judicial interpretation to clarify the criteria for the determination. First of all, the object of this crime is the same as that of the crime of infringing on trade secrets, and the acts are also similar to a certain extent, so the judgment of the seriousness of this crime can refer to the criterion for criminalization of the crime of infringing on trade secrets, that is, the loss of the right holder and the defendant's illegal gains as general considerations. However, due to the foreign-related nature of this crime and its bearing on national economic security, the harm to the national economy should also be taken into account in addition to the losses of private entities. In this regard, the basis for judging different circumstances of the crime of stealing, espionage, buying, or illegally providing state secrets or intelligence abroad can be referenced: the level and quantity of state secrets, or the degree of damage to national security and interests caused thereby. Although the trade secrets are not classified as secret, a comprehensive investigation can be conducted based on whether the trade secrets involved in the case belong to key core technical fields, the number of victims, and their importance in the national economy.
(3) Seek multiple paths for cooperation
In addition to criminal law enforcement on economic espionage, the U.S. government has also tried to promote the protection of its own trade secrets in other ways. In February 2013, the report on the Government Strategy for Mitigating the Theft of Trade Secrets in the United States included five strategic activity items: "Preventing cross-border trade secret theft through diplomatic means, such as requiring parties to establish remedial provisions for trade secret theft in bilateral, regional, and multilateral trade agreements" and "Promoting voluntary development and adoption of best practices by private enterprises to protect trade secrets." This also provides a reflection on multiple cooperation paths for the mainland to regulate economic espionage.
1. Diplomatic approach
In the international arena, the mainland can regulate economic espionage activities through diplomatic channels and by concluding international treaties and agreements. The huge difference in the level of protection and the protection method of trade secrets makes it possible for perpetrators of economic espionage to evade criminal punishment under the laws of the victim country by absconding to other countries. Through the conclusion of international treaties or agreements, the criminal legislation of various countries on economic espionage is harmonized to ensure that even if the perpetrator absconds from another country, he can still be prosecuted in accordance with the laws of the country where he is located. In addition, on the basis of abiding by the principles of international law, the mainland should form a mechanism for the extraterritorial application of the criminal law on trade secrets, appropriately expand its jurisdiction with the principle of minimum connection, strengthen the rapid response to foreign-related cases, and improve the rules of judicial assistance agreements and extradition treaties, so as to raise the level of internationalization of trade secret protection. At the same time, we should also be wary of the ultra-protectionist principle of the United States, and in the face of the abuse of long-arm jurisdiction by the United States, we should take countermeasures as the core and carry out a strong legal response.
2. Public-private partnerships
Internally, through the cooperation of government departments and enterprises, a national security risk assessment and supervision mechanism for trade secrets may be established, and the competent departments of the industry are to cooperate with the state security organs to carry out national security risk assessments of trade secrets on a regular basis, dynamically adjust the key matters and scope of prevention, formulate security prevention standards, and form a comprehensive regulatory work mechanism. On this basis, combine information technology to increase the level of intelligence in counter-espionage security precautions, and build a multi-level and focused cooperation system. Due to the private nature of trade secrets, without the cooperation of rights holders, although government departments have sufficient ability to prevent overseas economic espionage activities, it is difficult to know the actual status of trade secrets, and it is even more difficult to effectively protect them in advance or collect evidence in a timely manner. The establishment of a national security assessment and supervision mechanism for trade secrets can better bridge the problem of ineffective law enforcement caused by information asymmetry between public and private entities. However, in the process of information sharing, the information that the enterprise wants to protect may sometimes be exposed, and in this regard, the competent authority should control the collection of commercial information to a minimum and keep the information obtained strictly confidential to prevent damage to the interests of the enterprise due to leakage. Enterprises should also strengthen their trade secret compliance construction, reduce internal control risks, and enhance their international competitiveness.