In crafting the Defend Trade Secrets Act of 2016 (DTSA), Congress went beyond the federalization of state trade secret protection to tackle a broader social justice problem: the misuse of nondisclosure agreements (NDAs) to discourage reporting of illegal activity in a variety of areas. The past few decades have witnessed devastating government contracting abuses, regulatory violations, and deceptive financial schemes that have hurt the public and cost taxpayers and investors billions of dollars. Congress recognized that immunizing whistleblowers from the cost and risk of trade secret liability for providing information to the Government could spur law enforcement. But could this goal be accomplished without jeopardizing legitimate trade secret protection?
Peter Menell teaches intellectual property at the University of California, Berkeley, School of Law and co-directs the Berkeley Center for Law and Technology. He has advised the U.S. Congress, the U.S. Copyright Office, the U.S. Patent & Trademark Office, the Federal Trade Commission, state Attorneys General, and major technology and entertainment companies on a wide range of intellectual property and antitrust matters.
Peter S. Menell, Misconstruing Whistleblower Immunity Under the Defend Trade Secrets Act, 1 Nev. L.J. Forum 92 (2017).