§1833 — Title 18 Crimes and Criminal Procedure | U.S. Code

Summary

Says people cannot be criminally or civilly punished under federal or state trade secret laws for certain disclosures of trade secrets. It also does not stop lawful actions by federal, state, or local governments, and it does not create a new private right to sue for those government activities. A person is protected if they secretly tell a government official or an attorney about a suspected lawbreaking only to report or help investigate it, or if they include the secret in a court filing that is kept under seal. Someone suing an employer for retaliation can share secrets with their lawyer and use them in court if the filings are under seal and the secret is not otherwise revealed except by a judge’s order. Employers must warn employees about this immunity in contracts about trade secrets; a cross-reference to a company policy is okay. If an employer fails to give that notice for contracts made or updated after this rule became law, the employer can’t get exemplary damages or certain attorney fees in a suit against that employee. “Employee” here also covers contractors and consultants. This protection does not allow illegal acts, like breaking into systems to get material.

Title 18, §1833

Crimes and Criminal Procedure — Source: USLM XML via OLRC

(a)This chapter does not prohibit or create a private right of action for—

(1)any otherwise lawful activity conducted by a governmental entity of the United States, a State, or a political subdivision of a State; or

(2)the disclosure of a trade secret in accordance with subsection (b).

(b)(1)An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—

(A)is made—

(i)in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and

(ii)solely for the purpose of reporting or investigating a suspected violation of law; or

(B)is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

(2)An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual—

(A)files any document containing the trade secret under seal; and

(B)does not disclose the trade secret, except pursuant to court order.

(3)(A)An employer shall provide notice of the immunity set forth in this subsection in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.

(B)An employer shall be considered to be in compliance with the notice requirement in subparagraph (A) if the employer provides a cross-reference to a policy document provided to the employee that sets forth the employer’s reporting policy for a suspected violation of law.

(C)If an employer does not comply with the notice requirement in subparagraph (A), the employer may not be awarded exemplary damages or attorney fees under subparagraph (C) or (D) of section 1836(b)(3) in an action against an employee to whom notice was not provided.

(D)This paragraph shall apply to contracts and agreements that are entered into or updated after the date of enactment of this subsection.

(4)For purposes of this subsection, the term “employee” includes any individual performing work as a contractor or consultant for an employer.

(5)Except as expressly provided for under this subsection, nothing in this subsection shall be construed to authorize, or limit liability for, an act that is otherwise prohibited by law, such as the unlawful access of material by unauthorized means.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The date of enactment of this subsection, referred to in subsec. (b)(3)(D), is the date of enactment of Pub. L. 114–153, which was approved May 11, 2016.

Amendments

2016—Pub. L. 114–153, § 7(a)(1), (3), designated existing provisions as subsec. (a), inserted heading, and added subsec. (b). Pub. L. 114–153, § 2(c), inserted “or create a private right of action for” after “prohibit” in introductory provisions. Subsec. (a)(2). Pub. L. 114–153, § 7(a)(2), substituted “the disclosure of a trade secret in accordance with subsection (b)” for “the reporting of a suspected violation of law to any governmental entity of the United States, a State, or a political subdivision of a State, if such entity has lawful authority with respect to that violation”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2016 Amendment Pub. L. 114–153, § 2(e), May 11, 2016, 130 Stat. 381, provided that: “The

Amendments

made by this section [amending this section and section 1836 and 1839 of this title] shall apply with respect to any misappropriation of a trade secret (as defined in section 1839 of title 18, United States Code, as amended by this section) for which any act occurs on or after the date of the enactment of this Act [May 11, 2016].”

Construction

of 2016 Amendment Pub. L. 114–153, § 2(f), May 11, 2016, 130 Stat. 382, provided that: “Nothing in the

Amendments

made by this section [amending this section and section 1836 and 1839 of this title] shall be construed to modify the rule of

Construction

under section 1838 of title 18, United States Code, or to preempt any other provision of law.” Applicability of section 2 of Pub. L. 114–153 to Other Laws Pub. L. 114–153, § 2(g), May 11, 2016, 130 Stat. 382, provided that: “This section [amending this section and section 1836 and 1839 of this title and enacting provisions set out as notes under this section] and the

Amendments

made by this section shall not be construed to be a law pertaining to intellectual property for purposes of any other Act of Congress.”

§1833 Exceptions to Prohibitions

Summary

Title 18, §1833

Notes & Related Subsidiaries

Editorial Notes

References in Text

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Amendments

Construction

Amendments

Construction

Amendments

Citations & Metadata