[Congressional Record Volume 162, Number 50 (Monday, April 4, 2016)]
[Senate]
[Pages S1631-S1636]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DEFEND TRADE SECRETS ACT OF 2015
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to the consideration of S. 1890, which the clerk will report.
The bill clerk read as follows:
A bill (S. 1890) to amend chapter 90 of title 18, United
States Code, to provide Federal jurisdiction for the theft of
trade secrets, and for other purposes.
The Senate proceeded to consider the bill, which had been reported
from the Committee on the Judiciary, with an amendment to strike all
after the enacting clause and insert in lieu thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Defend Trade Secrets Act of
2016''.
[[Page S1632]]
SEC. 2. FEDERAL JURISDICTION FOR THEFT OF TRADE SECRETS.
(a) In General.--Section 1836 of title 18, United States
Code, is amended by striking subsection (b) and inserting the
following:
``(b) Private Civil Actions.--
``(1) In general.--An owner of a trade secret that is
misappropriated may bring a civil action under this
subsection if the trade secret is related to a product or
service used in, or intended for use in, interstate or
foreign commerce.
``(2) Civil seizure.--
``(A) In general.--
``(i) Application.--Based on an affidavit or verified
complaint satisfying the requirements of this paragraph, the
court may, upon ex parte application but only in
extraordinary circumstances, issue an order providing for the
seizure of property necessary to prevent the propagation or
dissemination of the trade secret that is the subject of the
action.
``(ii) Requirements for issuing order.--The court may not
grant an application under clause (i) unless the court finds
that it clearly appears from specific facts that--
``(I) an order issued pursuant to Rule 65 of the Federal
Rules of Civil Procedure or another form of equitable relief
would be inadequate to achieve the purpose of this paragraph
because the party to which the order would be issued would
evade, avoid, or otherwise not comply with such an order;
``(II) an immediate and irreparable injury will occur if
such seizure is not ordered;
``(III) the harm to the applicant of denying the
application outweighs the harm to the legitimate interests of
the person against whom seizure would be ordered of granting
the application and substantially outweighs the harm to any
third parties who may be harmed by such seizure;
``(IV) the applicant is likely to succeed in showing that--
``(aa) the information is a trade secret; and
``(bb) the person against whom seizure would be ordered--
``(AA) misappropriated the trade secret of the applicant by
improper means; or
``(BB) conspired to use improper means to misappropriate
the trade secret of the applicant;
``(V) the person against whom seizure would be ordered has
actual possession of--
``(aa) the trade secret; and
``(bb) any property to be seized;
``(VI) the application describes with reasonable
particularity the matter to be seized and, to the extent
reasonable under the circumstances, identifies the location
where the matter is to be seized;
``(VII) the person against whom seizure would be ordered,
or persons acting in concert with such person, would destroy,
move, hide, or otherwise make such matter inaccessible to the
court, if the applicant were to proceed on notice to such
person; and
``(VIII) the applicant has not publicized the requested
seizure.
``(B) Elements of order.--If an order is issued under
subparagraph (A), it shall--
``(i) set forth findings of fact and conclusions of law
required for the order;
``(ii) provide for the narrowest seizure of property
necessary to achieve the purpose of this paragraph and direct
that the seizure be conducted in a manner that minimizes any
interruption of the business operations of third parties and,
to the extent possible, does not interrupt the legitimate
business operations of the person accused of misappropriating
the trade secret;
``(iii)(I) be accompanied by an order protecting the seized
property from disclosure by prohibiting access by the
applicant or the person against whom the order is directed,
and prohibiting any copies, in whole or in part, of the
seized property, to prevent undue damage to the party against
whom the order has issued or others, until such parties have
an opportunity to be heard in court; and
``(II) provide that if access is granted by the court to
the applicant or the person against whom the order is
directed, the access shall be consistent with subparagraph
(D);
``(iv) provide guidance to the law enforcement officials
executing the seizure that clearly delineates the scope of
the authority of the officials, including--
``(I) the hours during which the seizure may be executed;
and
``(II) whether force may be used to access locked areas;
``(v) set a date for a hearing described in subparagraph
(F) at the earliest possible time, and not later than 7 days
after the order has issued, unless the party against whom the
order is directed and others harmed by the order consent to
another date for the hearing, except that a party against
whom the order has issued or any person harmed by the order
may move the court at any time to dissolve or modify the
order after giving notice to the applicant who obtained the
order; and
``(vi) require the person obtaining the order to provide
the security determined adequate by the court for the payment
of the damages that any person may be entitled to recover as
a result of a wrongful or excessive seizure or wrongful or
excessive attempted seizure under this paragraph.
``(C) Protection from publicity.--The court shall take
appropriate action to protect the person against whom an
order under this paragraph is directed from publicity, by or
at the behest of the person obtaining the order, about such
order and any seizure under such order.
``(D) Materials in custody of court.--
``(i) In general.--Any materials seized under this
paragraph shall be taken into the custody of the court. The
court shall secure the seized material from physical and
electronic access during the seizure and while in the custody
of the court.
``(ii) Storage medium.--If the seized material includes a
storage medium, or if the seized material is stored on a
storage medium, the court shall prohibit the medium from
being connected to a network or the Internet without the
consent of both parties, until the hearing required under
subparagraph (B)(v) and described in subparagraph (F).
``(iii) Protection of confidentiality.--The court shall
take appropriate measures to protect the confidentiality of
seized materials that are unrelated to the trade secret
information ordered seized pursuant to this paragraph unless
the person against whom the order is entered consents to
disclosure of the material.
``(iv) Appointment of special master.--The court may
appoint a special master to locate and isolate all
misappropriated trade secret information and to facilitate
the return of unrelated property and data to the person from
whom the property was seized. The special master appointed by
the court shall agree to be bound by a non-disclosure
agreement approved by the court.
``(E) Service of order.--The court shall order that service
of a copy of the order under this paragraph, and the
submissions of the applicant to obtain the order, shall be
made by a Federal law enforcement officer who, upon making
service, shall carry out the seizure under the order. The
court may allow State or local law enforcement officials to
participate, but may not permit the applicant or any agent of
the applicant to participate in the seizure. At the request
of law enforcement officials, the court may allow a technical
expert who is unaffiliated with the applicant and who is
bound by a court-approved non-disclosure agreement to
participate in the seizure if the court determines that the
participation of the expert will aid the efficient execution
of and minimize the burden of the seizure.
``(F) Seizure hearing.--
``(i) Date.--A court that issues a seizure order shall hold
a hearing on the date set by the court under subparagraph
(B)(v).
``(ii) Burden of proof.--At a hearing held under this
subparagraph, the party who obtained the order under
subparagraph (A) shall have the burden to prove the facts
supporting the findings of fact and conclusions of law
necessary to support the order. If the party fails to meet
that burden, the seizure order shall be dissolved or modified
appropriately.
``(iii) Dissolution or modification of order.--A party
against whom the order has been issued or any person harmed
by the order may move the court at any time to dissolve or
modify the order after giving notice to the party who
obtained the order.
``(iv) Discovery time limits.--The court may make such
orders modifying the time limits for discovery under the
Federal Rules of Civil Procedure as may be necessary to
prevent the frustration of the purposes of a hearing under
this subparagraph.
``(G) Action for damage caused by wrongful seizure.--A
person who suffers damage by reason of a wrongful or
excessive seizure under this paragraph has a cause of action
against the applicant for the order under which such seizure
was made, and shall be entitled to the same relief as is
provided under section 34(d)(11) of the Trademark Act of 1946
(15 U.S.C. 1116(d)(11)). The security posted with the court
under subparagraph (B)(vi) shall not limit the recovery of
third parties for damages.
``(H) Motion for encryption.--A party or a person who
claims to have an interest in the subject matter seized may
make a motion at any time, which may be heard ex parte, to
encrypt any material seized or to be seized under this
paragraph that is stored on a storage medium. The motion
shall include, when possible, the desired encryption method.
``(3) Remedies.--In a civil action brought under this
subsection with respect to the misappropriation of a trade
secret, a court may--
``(A) grant an injunction--
``(i) to prevent any actual or threatened misappropriation
described in paragraph (1) on such terms as the court deems
reasonable, provided the order does not--
``(I) prevent a person from entering into an employment
relationship, and that conditions placed on such employment
shall be based on evidence of threatened misappropriation and
not merely on the information the person knows; or
``(II) otherwise conflict with an applicable State law
prohibiting restraints on the practice of a lawful
profession, trade, or business;
``(ii) if determined appropriate by the court, requiring
affirmative actions to be taken to protect the trade secret;
and
``(iii) in exceptional circumstances that render an
injunction inequitable, that conditions future use of the
trade secret upon payment of a reasonable royalty for no
longer than the period of time for which such use could have
been prohibited;
``(B) award--
``(i)(I) damages for actual loss caused by the
misappropriation of the trade secret; and
``(II) damages for any unjust enrichment caused by the
misappropriation of the trade secret that is not addressed in
computing damages for actual loss; or
``(ii) in lieu of damages measured by any other methods,
the damages caused by the misappropriation measured by
imposition of liability for a reasonable royalty for the
misappropriator's unauthorized disclosure or use of the trade
secret;
``(C) if the trade secret is willfully and maliciously
misappropriated, award exemplary damages in an amount not
more than 2 times the amount of the damages awarded under
subparagraph (B); and
``(D) if a claim of the misappropriation is made in bad
faith, which may be established by circumstantial evidence, a
motion to terminate an injunction is made or opposed in bad
faith, or the trade secret was willfully and maliciously
[[Page S1633]]
misappropriated, award reasonable attorney's fees to the
prevailing party.
``(c) Jurisdiction.--The district courts of the United
States shall have original jurisdiction of civil actions
brought under this section.
``(d) Period of Limitations.--A civil action under
subsection (b) may not be commenced later than 3 years after
the date on which the misappropriation with respect to which
the action would relate is discovered or by the exercise of
reasonable diligence should have been discovered. For
purposes of this subsection, a continuing misappropriation
constitutes a single claim of misappropriation.''.
(b) Definitions.--Section 1839 of title 18, United States
Code, is amended--
(1) in paragraph (3)--
(A) in subparagraph (B), by striking ``the public'' and
inserting ``another person who can obtain economic value from
the disclosure or use of the information''; and
(B) by striking ``and'' at the end;
(2) in paragraph (4), by striking the period at the end and
inserting a semicolon; and
(3) by adding at the end the following:
``(5) the term `misappropriation' means--
``(A) acquisition of a trade secret of another by a person
who knows or has reason to know that the trade secret was
acquired by improper means; or
``(B) disclosure or use of a trade secret of another
without express or implied consent by a person who--
``(i) used improper means to acquire knowledge of the trade
secret;
``(ii) at the time of disclosure or use, knew or had reason
to know that the knowledge of the trade secret was--
``(I) derived from or through a person who had used
improper means to acquire the trade secret;
``(II) acquired under circumstances giving rise to a duty
to maintain the secrecy of the trade secret or limit the use
of the trade secret; or
``(III) derived from or through a person who owed a duty to
the person seeking relief to maintain the secrecy of the
trade secret or limit the use of the trade secret; or
``(iii) before a material change of the position of the
person, knew or had reason to know that--
``(I) the trade secret was a trade secret; and
``(II) knowledge of the trade secret had been acquired by
accident or mistake;
``(6) the term `improper means'--
``(A) includes theft, bribery, misrepresentation, breach or
inducement of a breach of a duty to maintain secrecy, or
espionage through electronic or other means; and
``(B) does not include reverse engineering, independent
derivation, or any other lawful means of acquisition; and
``(7) the term `Trademark Act of 1946' means the Act
entitled `An Act to provide for the registration and
protection of trademarks used in commerce, to carry out the
provisions of certain international conventions, and for
other purposes, approved July 5, 1946 (15 U.S.C. 1051 et
seq.) (commonly referred to as the ``Trademark Act of 1946''
or the ``Lanham Act'')'.''.
(c) Exceptions to Prohibition.--Section 1833 of title 18,
United States Code, is amended, in the matter preceding
paragraph (1), by inserting ``or create a private right of
action for'' after ``prohibit''.
(d) Conforming Amendments.--
(1) The section heading for section 1836 of title 18,
United States Code, is amended to read as follows:
``Sec. 1836. Civil proceedings''.
(2) The table of sections for chapter 90 of title 18,
United States Code, is amended by striking the item relating
to section 1836 and inserting the following:
``1836. Civil proceedings.''.
(e) Effective Date.--The amendments made by this section
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.
(f) Rule of Construction.--Nothing in the amendments made
by this section 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.
(g) Applicability to Other Laws.--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.
SEC. 3. TRADE SECRET THEFT ENFORCEMENT.
(a) In General.--Chapter 90 of title 18, United States
Code, is amended--
(1) in section 1832(b), by striking ``$5,000,000'' and
inserting ``the greater of $5,000,000 or 3 times the value of
the stolen trade secret to the organization, including
expenses for research and design and other costs of
reproducing the trade secret that the organization has
thereby avoided''; and
(2) in section 1835--
(A) by striking ``In any prosecution'' and inserting the
following:
``(a) In General.--In any prosecution''; and
(B) by adding at the end the following:
``(b) Rights of Trade Secret Owners.--The court may not
authorize or direct the disclosure of any information the
owner asserts to be a trade secret unless the court allows
the owner the opportunity to file a submission under seal
that describes the interest of the owner in keeping the
information confidential. No submission under seal made under
this subsection may be used in a prosecution under this
chapter for any purpose other than those set forth in this
section, or otherwise required by law. The provision of
information relating to a trade secret to the United States
or the court in connection with a prosecution under this
chapter shall not constitute a waiver of trade secret
protection, and the disclosure of information relating to a
trade secret in connection with a prosecution under this
chapter shall not constitute a waiver of trade secret
protection unless the trade secret owner expressly consents
to such waiver.''.
(b) RICO Predicate Offenses.--Section 1961(1) of title 18,
United States Code, is amended by inserting ``sections 1831
and 1832 (relating to economic espionage and theft of trade
secrets),'' before ``section 1951''.
SEC. 4. REPORT ON THEFT OF TRADE SECRETS OCCURRING ABROAD.
(a) Definitions.--In this section:
(1) Director.--The term ``Director'' means the Under
Secretary of Commerce for Intellectual Property and Director
of the United States Patent and Trademark Office.
(2) Foreign instrumentality, etc.--The terms ``foreign
instrumentality'', ``foreign agent'', and ``trade secret''
have the meanings given those terms in section 1839 of title
18, United States Code.
(3) State.--The term ``State'' includes the District of
Columbia and any commonwealth, territory, or possession of
the United States.
(4) United states company.--The term ``United States
company'' means an organization organized under the laws of
the United States or a State or political subdivision
thereof.
(b) Reports.--Not later than 1 year after the date of
enactment of this Act, and biannually thereafter, the
Attorney General, in consultation with the Intellectual
Property Enforcement Coordinator, the Director, and the heads
of other appropriate agencies, shall submit to the Committees
on the Judiciary of the House of Representatives and the
Senate, and make publicly available on the Web site of the
Department of Justice and disseminate to the public through
such other means as the Attorney General may identify, a
report on the following:
(1) The scope and breadth of the theft of the trade secrets
of United States companies occurring outside of the United
States.
(2) The extent to which theft of trade secrets occurring
outside of the United States is sponsored by foreign
governments, foreign instrumentalities, or foreign agents.
(3) The threat posed by theft of trade secrets occurring
outside of the United States.
(4) The ability and limitations of trade secret owners to
prevent the misappropriation of trade secrets outside of the
United States, to enforce any judgment against foreign
entities for theft of trade secrets, and to prevent imports
based on theft of trade secrets overseas.
(5) A breakdown of the trade secret protections afforded
United States companies by each country that is a trading
partner of the United States and enforcement efforts
available and undertaken in each such country, including a
list identifying specific countries where trade secret theft,
laws, or enforcement is a significant problem for United
States companies.
(6) Instances of the Federal Government working with
foreign countries to investigate, arrest, and prosecute
entities and individuals involved in the theft of trade
secrets outside of the United States.
(7) Specific progress made under trade agreements and
treaties, including any new remedies enacted by foreign
countries, to protect against theft of trade secrets of
United States companies outside of the United States.
(8) Recommendations of legislative and executive branch
actions that may be undertaken to--
(A) reduce the threat of and economic impact caused by the
theft of the trade secrets of United States companies
occurring outside of the United States;
(B) educate United States companies regarding the threats
to their trade secrets when taken outside of the United
States;
(C) provide assistance to United States companies to reduce
the risk of loss of their trade secrets when taken outside of
the United States; and
(D) provide a mechanism for United States companies to
confidentially or anonymously report the theft of trade
secrets occurring outside of the United States.
SEC. 5. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) trade secret theft occurs in the United States and
around the world;
(2) trade secret theft, wherever it occurs, harms the
companies that own the trade secrets and the employees of the
companies;
(3) chapter 90 of title 18, United States Code (commonly
known as the ``Economic Espionage Act of 1996''), applies
broadly to protect trade secrets from theft; and
(4) it is important when seizing information to balance the
need to prevent or remedy misappropriation with the need to
avoid interrupting the--
(A) business of third parties; and
(B) legitimate interests of the party accused of
wrongdoing.
SEC. 6. BEST PRACTICES.
(a) In General.--Not later than 2 years after the date of
enactment of this Act, the Federal Judicial Center, using
existing resources, shall develop recommended best practices
for--
(1) the seizure of information and media storing the
information; and
(2) the securing of the information and media once seized.
(b) Updates.--The Federal Judicial Center shall update the
recommended best practices developed under subsection (a)
from time to time.
(c) Congressional Submissions.--The Federal Judicial Center
shall provide a copy of the recommendations developed under
subsection (a), and any updates made under subsection (b), to
the--
(1) Committee on the Judiciary of the Senate; and
(2) Committee on the Judiciary of the House of
Representatives.
[[Page S1634]]
SEC. 7. IMMUNITY FROM LIABILITY FOR CONFIDENTIAL DISCLOSURE
OF A TRADE SECRET TO THE GOVERNMENT OR IN A
COURT FILING.
(a) Amendment.--Section 1833 of title 18, United States
Code, is amended--
(1) by striking ``This chapter'' and inserting ``(a) In
General.--This chapter'';
(2) in subsection (a)(2), as designated by paragraph (1),
by striking ``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'' and inserting
``the disclosure of a trade secret in accordance with
subsection (b)''; and
(3) by adding at the end the following:
``(b) Immunity From Liability for Confidential Disclosure
of a Trade Secret to the Government or in a Court Filing.--
``(1) Immunity.--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) Use of trade secret information in anti-retaliation
lawsuit.--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) Notice.--
``(A) In general.--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) Policy document.--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) Non-compliance.--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) Applicability.--This paragraph shall apply to
contracts and agreements that are entered into or updated
after the date of enactment of this subsection.
``(4) Employee defined.--For purposes of this subsection,
the term `employee' includes any individual performing work
as a contractor or consultant for an employer.
``(5) Rule of construction.--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.''.
(b) Technical and Conforming Amendment.--Section 1838 of
title 18, United States Code, is amended by striking ``This
chapter'' and inserting ``Except as provided in section
1833(b), this chapter''.
The PRESIDING OFFICER. Under the previous order, there will be 30
minutes of debate equally divided in the usual form.
Mr. COONS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. COONS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COONS. Mr. President, I made long remarks earlier this afternoon,
along with my colleague and friend Senator Hatch.
I want to briefly reiterate my thanks to the many staff who worked
tirelessly to make it possible for the Defense Trade Secrets Act to
move forward today. I greatly appreciate the leadership and hard work
of the chairman and ranking member of the Judiciary Committee, Senators
Grassley and Leahy, for their hard work and their staffs' work.
I want to personally thank Ted Schroeder, who was my chief counsel
for many years, for his terrific work on this bill and the dozens of
staffs here in the Senate and the House and outside groups who have
come together to make it possible for this strong bipartisan bill to
move forward today.
Thank you, Mr. President.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Ex Parte Seizure Provision
Mr. GRASSLEY. Mr. President, as the Senate is prepared to vote on the
Defend Trade Secrets Act, I rise today to enter into a colloquy with my
longtime friend and colleague from Utah, Senator Orrin Hatch.
Does the Senator agree that the ex parte seizure provision is a vital
element of the bill?
Mr. HATCH. I thank my colleague and longtime friend from Iowa,
Senator Chuck Grassley, for the question.
Indeed, the Defend Trade Secrets Act provides a trade secret owner
with a right of action to go to court ex parte to have the trade secret
seized and returned before the misappropriator can divulge it and cause
it to lose its protection or before significant destruction of
evidence.
The provision is tailored to prevent abuse--balancing the need to
recover a stolen trade secret with the rights of defendants and third
parties.
We drafted the bill to require the party seeking ex parte review to
make a rigorous showing that they owned the secret, that it was stolen,
and that third parties would not be harmed if an order were granted. We
required a hearing at the earliest possible date. We also included
damages for wrongful seizure, including attorney's fees.
Could the Senator discuss the intent behind that language?
Mr. GRASSLEY. I thank Senator Hatch. The Defend Trade Secrets Act is
the product of bipartisan consensus, and as he will recall, before the
bill was approved in the Senate Judiciary Committee, a modification
added language that ex parte seizures would be granted under
``extraordinary circumstances.''
As I understand it, the ``extraordinary circumstances'' language was
not added to impose an additional requirement for obtaining an ex parte
seizure, but to acknowledge the Judiciary's general disfavor of ex
parte procedures and to reinforce that particular circumstances are
required to utilize the seizure provisions but still provide a much
needed avenue for ex parte seizures when necessary.
The legislation specifically lists these requirements for issuing an
ex parte seizure order. For example, this authority is not available if
an injunction under existing rules of civil procedure would be
sufficient. The ex parte seizure provision is expected to be used in
instances in which a defendant is seeking to flee the country or
planning to disclose the trade secret to a third party immediately or
is otherwise not amenable to the enforcement of the court's orders.
Mr. HATCH. That is correct. We expect the provision will be used in
instances such as when a trade secret misappropriator is seeking to
flee the country or planning to disclose a trade secret immediately.
Mr. GRASSLEY. I thank Senator Hatch for his helpful insights.
Mr. President, today the Senate is poised to pass the Defend Trade
Secrets Act of 2016, a bill that offers practical and necessary
solutions to a growing problem.
I have recently had the opportunity to speak about a number of
bipartisan bills that have passed out of the Judiciary Committee and
that have been taken up here on the Senate floor. That is a testament
to the fact that the Judiciary Committee is working hard through an
open process to find thoughtful solutions to the problems facing our
country. In fact, we have processed 24 bills out of the Judiciary
Committee, all in a bipartisan fashion. Of these, 16 have passed the
Senate and 6 have been signed into law by the President. While any
Member of this body can tell you that it isn't always easy to find
legislative agreement, the American people deserve hardworking
representatives in Washington who strive to get things accomplished.
And the record of the Judiciary Committee shows that we have chosen to
overcome gridlock and dysfunction to pass legislation that addresses
problems that American people face.
Here are a few examples of the Judiciary Committee's legislative
accomplishments so far. Last month, the Senate overwhelmingly passed
the bipartisan Comprehensive Addiction and Recovery Act, or CARA, by a
vote of 94-1. In the face of a growing and deadly epidemic of heroin
and opioid painkillers, this bill addresses this crisis comprehensively
supporting prevention, education, treatment, recovery, and law
enforcement.
In the past few weeks, the Senate also passed the FOIA Improvement
[[Page S1635]]
Act, a bill authored by Senators Cornyn and Leahy that I worked to move
through the committee process. It codifies a presumption of openness
for government agencies to follow when they respond to requests for
government records via the Freedom of Information Act. In passing the
FOIA Improvement Act--the Senate is helping change the culture in
government toward openness and transparency.
In February, the Judiciary Committee reported out the bipartisan
Justice Against Sponsors of Terrorism Act by a vote of 19-0. The bill,
which has now been signed into law, holds sponsors of terrorism
accountable by preventing them from invoking ``sovereign immunity'' in
cases involving attacks within the United States. It also allows civil
suits to be filed against foreign entities that have aided or abetted
terrorists.
The committee has worked to protect families and children by passing
bills such as the Amy and Vicky Child Pornography Victim Restitution
Improvement Act and the Adoptive Family Relief Act. The Amy and Vicky
Child Pornography Victim Restitution Improvement Act reverses a Supreme
Court decision that limited the restitution that victims of child
pornography can seek from any single perpetrator, ensuring that victims
can be fully compensated for these heinous crimes, and can focus their
attention on healing. The Adoptive Family Relief Act was signed into
law in October of 2015, after passing the Judiciary Committee, and aims
to help families facing challenges with international adoptions.
And once again today, we are set to approve another Judiciary
Committee bill that is supported by folks across the whole of the
political spectrum. The support behind the Defend Trade Secrets Act
makes clear that the Senate and Judiciary Committee is working to find
thoughtful solutions to problems facing our country. This bipartisan
legislation is authored by Senators Hatch and Coons. It brings needed
uniformity to trade secret litigation so creators and owners of trade
secrets can more effectively address the growing problem of trade
secret theft.
It is estimated that the American economy loses 2.1 million jobs
every year because of trade secret theft. Further, according to a
recent report of the Commission on the Theft of American Intellectual
Property, annual losses owing to trade secret theft are likely
comparable to the current annual level of U.S. exports to Asia--over
$300 billion.
Back in Iowa we have seen this first-hand as innovative companies
like Monsanto and DuPont-Pioneer have become targets for trade secret
theft. In a well-publicized case, a naturalized citizen was indicted
and convicted for engaging in a scheme with foreign nationals to steal
proprietary test seeds from Iowa fields to benefit foreign companies.
Contrasted with other areas of intellectual property, trade secrets
are mainly protected as a matter of state law. Forty-seven states have
enacted some variation of the Uniform Trade Secrets Act. Yet as we have
learned through hearings in the Judiciary Committee and from companies
who have experienced trade secret theft, the increasing use of
technology by criminals and their ability to quickly travel across
state lines, means at times these laws are inadequate. The existing
patchwork of state laws has become a difficult procedural hurdle for
victims who must seek immediate relief before their valuable
intellectual property is lost forever.
As the pace of trade secret theft has soared, the Federal Bureau of
Investigation reports that their caseload for economic espionage and
trade secret theft cases has also increased more than 60% from 2009 to
2013. The Defend Trade Secrets Act will create a uniform federal civil
cause of action, without preempting state law, to provide clear rules
and predictability for trade secret cases. Victims of trade secret
theft will now have another weapon in their arsenal to combat trade
secret theft, aside from criminal enforcement. This bill will provide
certainty of the rules, standards, and practices to stop trade secrets
from being disseminated and losing their value, and will allow victims
to move quickly to federal court to stop their trade secrets from being
disseminated. By improving trade secret protection, this bill will also
help to incentivize future innovation.
Importantly, the Defend Trade Secrets Act codifies protections for
whistleblowers. An amendment that I authored with Ranking Member Leahy,
which was included in Committee, would create express protections for
whistleblowers who disclose trade secrets confidentially to the
government to report a violation of the law. There is a longstanding
and compelling public interest in safeguarding the ability of
whistleblowers to lawfully and appropriately disclose waste, fraud, and
abuse that would otherwise never be brought to light. As chairman, and
one of the founding members of the Senate Whistleblower Protection
Caucus, I've seen how whistleblowers help hold wrongdoers accountable
and allow the government to recoup taxpayer money that might otherwise
be lost to fraud and other unlawful activities. The inclusion of this
whistleblower protection in the Defend Trade Secrets Act allows us to
help make sure that those who are best in a position to report illegal
conduct can come forward.
Passing legislation to help Americans deal with a growing problem
like trade secret theft in a bipartisan fashion is an important
accomplishment. I am proud of the way the Judiciary Committee continues
to get things done.
Mr. President, I yield back the remainder of our time.
The PRESIDING OFFICER. All time is yielded back.
Under the previous order, the committee-reported substitute amendment
is agreed to.
The bill was ordered to be engrossed for a third reading and was read
the third time.
Mr. GRASSLEY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The PRESIDING OFFICER. The bill having been read the third time, the
question is, Shall it pass?
The yeas and nays have been ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from New Hampshire (Ms. Ayotte), the Senator from Texas (Mr.
Cruz), the Senator from Colorado (Mr. Gardner), the Senator from Utah
(Mr. Lee), the Senator from Alaska (Ms. Murkowski), the Senator from
Alaska (Mr. Sullivan), the Senator from Pennsylvania (Mr. Toomey), and
the Senator from Louisiana (Mr. Vitter).
Further, if present and voting, the Senator from New Hampshire (Ms.
Ayotte) would have voted ``yea'', the Senator from Colorado (Mr.
Gardner) would have voted ``yea'', and the Senator from Alaska (Mr.
Sullivan) would have voted ``yea''.
Mr. DURBIN. I announce that the Senator from Delaware (Mr. Carper),
the Senator from New York (Mrs. Gillibrand), the Senator from Vermont
(Mr. Leahy), the Senator from Maryland (Ms. Mikulski), and the Senator
from Vermont (Mr. Sanders).
The PRESIDING OFFICER (Mr. Lankford). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 87, nays 0, as follows:
[Rollcall Vote No. 39 Leg.]
YEAS--87
Alexander
Baldwin
Barrasso
Bennet
Blumenthal
Blunt
Booker
Boozman
Boxer
Brown
Burr
Cantwell
Capito
Cardin
Casey
Cassidy
Coats
Cochran
Collins
Coons
Corker
Cornyn
Cotton
Crapo
Daines
Donnelly
Durbin
Enzi
Ernst
Feinstein
Fischer
Flake
Franken
Graham
Grassley
Hatch
Heinrich
Heitkamp
Heller
Hirono
Hoeven
Inhofe
Isakson
Johnson
Kaine
King
Kirk
Klobuchar
Lankford
Manchin
Markey
McCain
McCaskill
McConnell
Menendez
Merkley
Moran
Murphy
Murray
Nelson
Paul
Perdue
Peters
Portman
Reed
Reid
Risch
Roberts
Rounds
Rubio
Sasse
Schatz
Schumer
Scott
Sessions
Shaheen
Shelby
Stabenow
Tester
Thune
Tillis
Udall
Warner
Warren
Whitehouse
Wicker
Wyden
NOT VOTING--13
Ayotte
Carper
Cruz
Gardner
Gillibrand
Leahy
Lee
[[Page S1636]]
Mikulski
Murkowski
Sanders
Sullivan
Toomey
Vitter
The bill (S. 1890), as amended, was passed.
____________________