01102013Here are the noteworthy trade secret, non-compete and cybersecurity stories from the past week, as well as one or two that I missed over the past couple of weeks:

Computer Fraud and Abuse Act Posts and Cases:

The commentary criticizing the prosecution of technology activist Aaron Swartz continues to mount. (For those who have not been following it, Swartz committed suicide after plea negotiations with the U.S. Attorney for the District of Massachusetts broke down; he had been charged with violations of the Computer Fraud & Abuse Act for allegedly hacking into an academic database affiliated with MIT). I am hoping to get a post with my perspective on this important case out this weekend. In the meantime, those interested in more on this case should see the following articles:

  • Professor Orin Kerr has written two posts for The Volokh Conspiracy, the first evaluating whether the prosecutors abused their discretion (he concludes that they were not out of bounds under normal prosecutorial standards) and the second proposing changes to the CFAA.
  • And in The Public Domain, James Boyle voices his disagreement in “The Prosecution of Aaron: A Response to Orin Kerr.”
  • The Wall Street Journal had an editorial last Friday, “Cyber Crime and Punishment,” which expressed concern over the proportionality of the penalties sought by U.S. Attorney Carmen Ortiz.
  • The New York Times had an op-ed piece by Lincoln Caplan entitled “Aaron Swartz and Prosecutorial Discretion” and also ran an article detailing MIT’s role in the case, “How M.I.T. Ensnared a Hacker, Bucking a Freewheeling Culture.”
  • In Harper’s Magazine, Scott Horton is critical of the prosecution in ‘”Carmen Ortiz Strikes Out.”
  • For those interested in finding out more about some of the statistics behind recent CFAA prosecutions, Professor Kyle Graham has a fine summary in his post entitled “Some Thoughts on the Computer Fraud and Abuse Act” for the noncuratlex.com blog.

Trade Secret and Non-Compete Posts and Cases:

  • Could the National Labor Relations Board find an employer’s confidentiality provisions to be overbroad? An interesting post by Epstein Becker’s Trade Secrets & Noncompete Blog notes a recent decision in which a NLRB administrative law judge that  found confidentiality and non-disparagement provisions contained in a mortgage banker’s employment agreement were violative of the NLRA. 
  • “Judge Strips Richtek Claims In UPI Trade Secrets Case,” reports Law360.
  • “Analyzing the Non-Competition Covenant as a Category of Intellectual Property Regulation,” from the Hastings Science & Technology Law Journal (a hit tip to Jonathan Pollard for tweeting this article).
  • “Federal Court Finds Choice of Law that Permits Blue Penciling Does Not Violate Virginia Public Policy,” reports Paul Kennedy for Littler’s Unfair Competition & Trade Secrets Counsel Blog.
  • “California Appellate Decision Clarifies Standard for Injunctive Relief Carve-Outs Within California Arbitration Agreements,” reports Robert Milligan for Seyfarth Shaw’s Trading Secrets Blog.
  • If you are in the aerospace industry, you need to be particularly careful with your Chinese partners and suppliers, advises Todd Sullivan in his Trade Secrets & Employee Defections Blog. Todd cites a recent article from The New York Times, which addresses security and trade secret concerns for that industry in China.
  • “US Manufacturer Accuses Chinese Agent Of Stealing IP,” notes Law360.
  • “The China NDA (Non-Disclosure Agreement). Shut the Barn Door BEFORE the Horse Bolts,” warns Dan Harris in his China Law Blog.

Cybersecurity Articles and Posts:

  • “The BYOD Thicket: Some Tips Basis Steps to Take for Businesses,” advises Kenneth Vanko in his Legal Developments in Non-Competition Agreements Blog.
  • And if you are interested in how law firms should balance BYOD and security, check out Sean Martin’s article, “Top Mobile Use Cases in Law Firms,” for Law Technology News.
  • “Protecting Companies’ Intellectual Property From Cyber Crime,” advise Ernest Badway and Daniel Schnapp for Law Technology News.