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Aleynikov Arrest Contradicted Formal DOJ Policy

Sergey Aleynikov was arrested for theft of trade secrets, in violation of 18 U.S.C. §1832.  The United States Attorneys Manual (USAM) is an internal document that "contains general policies and some procedures" regarding the prosecution of federal crimes.  Not every violation of the law can be prosecuted.  Thus, before each section covering major crimes, the USAM describes the policy objections.

The USAM notes: 

Economic Espionage Act of 1996 (18 U.S.C. §§ 1831-1837)—Prosecutive Policy  

The EEA is not intended to criminalize every theft of trade secrets for which civil remedies may exist under state law. It was passed in recognition of the increasing importance of the value of intellectual property in general, and trade secrets in particular to the economic well-being and security of the United States and to close a federal enforcement gap in this important area of law. 

Trade secret cases are rarely prosecuted, and for good reason.  A large company like Goldman Sachs is perfectly capable of obtaining an injunction, preventing someone from revealing its trade secrets.  Limited judicial resources should not be spent doing for Goldman what Goldman may do for itself.  Nevertheless, Aleynikov was arrested, even though Goldman had civil remedies under state law.

The USAM also describes the elements of the crime Aleynikov was arrested under.  

Elements of the Offense Under 18 U.S.C. § 1832
In order to establish a violation of 18 U.S.C. § 1832, the government must prove: 

  • (1) the defendant stole, or without authorization of the owner, obtained, destroyed or conveyed information; 
  • (2) the defendant knew this information was proprietary; 
  • (3) the information was in fact a trade secret; 
  • (4) the defendant intended to convert the trade secret to the economic benefit of anyone other than the owner
  • (5) the defendant knew or intended that the owner of the trade secret would be injured; and (6) the trade secret was related to or was included in a product that was produced or placed in interstate or foreign commerce.

The government has not been able to produce any evidence regarding elements (4) and (5).  None.  All the government has been able to show is that Aleynikov dowloaded less than 1% of a computer program's code.  They haven't established why he did this - let alone whether he downloaded the code to benefit a third part or to injure Goldman Sachs.

Here is what the United States Attorney Manual says about element (4):

Under § 1832, the government must prove that the act of misappropriating the trade secret was intended for the economic benefit of a person other than the rightful owner (which can be the defendant or some other person or entity). This differs from § 1831 where foreign government activity is required, and the benefits may be non-economic. Therefore, a person who misappropriates a trade secret but who does not intend for anyone to gain economically from the theft cannot be prosecuted under § 1832.

Again, there has been no evidence establishing that Aleynikov intended to use the software to benefit a third party. 

Here is the USAM on element (5):

Beyond demonstrating that the defendant both knew the information taken was proprietary and intended that the misappropriation economically benefit someone other than the rightful owner, the government in a § 1832 case also must prove a third mens rea element: that the defendant intended to "injure" the owner of the trade secret.

Where is the evidence showing that Aleynikov intended to injure Goldman Sachs?  There is no such evidence.  

The case against Aleynikov must be dismissed.  If anything, the arresting officers should be concerned that Aleynikov might file a Bivens action for false arrest.  There was no probable cause that Aleynikov intended to violate elements (4) and (5), and thus the arrest was unlawful.