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Republishing DNC’s Stolen Secrets Not Trade Secret Misappropriation

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By David G. Barker

On April 20, 2018, the Democratic National Committee (“DNC”) sued the Russian Federation, Donald J. Trump for President, Inc. (the “Campaign”), WikiLeaks, and other defendants relating to the Russian Federation’s theft of documents from the DNC during the 2016 presidential election. Last week, the United States District Court, Southern District of New York, dismissed with prejudice the complaint against the Campaign, WikiLeaks, and the other defendants.

The court noted, the “primary wrongdoer in this alleged criminal enterprise is undoubtably the Russian Federation . . . [which] cannot be sued in the courts of the United States for governmental actions, subject to certain limited exceptions not present in this case.” The court held the complaint did not state a claim against the remaining defendants, primarily on First Amendment grounds.

This post addresses the court’s dismissal of the trade secret misappropriation claim.

The complaint alleged that the Russian Federation hacked the DNC’s servers on multiple occasions in 2015 and 2016 and stole secret campaign data such as donor lists and fundraising strategies. The Russian Federation then allegedly disseminated the stolen secrets through WikiLeaks, with encouragement from the Campaign and other defendants. But the complaint did not allege that any defendant other than the Russian Federation hacked the servers or stole the secrets.

The Defend Trade Secrets Act, 18 U.S.C. § 1831, et seq. (“DTSA”), prohibits, among other things, unauthorized disclosure or use of a trade secret that was “derived from or through a person who had used improper means to acquire the trade secret.” That language suggests the DNC might have had a viable DTSA claim against WikiLeaks and the Campaign, if those defendants knew the Russian Federation had used improper means to acquire the DNC’s secrets.

But the same First Amendment protection that disposed of the other claims also disposed of the DTSA claim. Citing the Supreme Court, the district court held, “Journalists are allowed to request documents that have been stolen and to publish those documents,” and “it is constitutionally insignificant that WikiLeaks knew the Russian Federation had stolen the documents when it published them.”

Even though the donor lists and fundraising strategies were secret, the DNC did not dispute that those documents were of “public importance.” The court found that the published documents “allowed the American electorate to look behind the curtain of one of the two major political parties in the United States during a presidential election.” The court held this “type of information is plainly of the type entitled to the strongest protection the First Amendment offers,” and the First Amendment barred the claim for trade secret misappropriation.

Different groups advance arguments about limiting speech for reasons across the political spectrum (see, e.g., here, here, and here).  But this case joins the list of recent courts (see, e.g., here, here, and here) that continue to grant broad protection under the First Amendment in intellectual property cases.