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Cybercrime—including trade secrets theft—has famously been termed “the greatest transfer of wealth in human history” by recently retired National Security Agency head General Keith Alexander. See “The Next Wave” [NSA] 19:4 (2012). Corporate victims of trade secrets theft will hardly disagree. Ex-employees who depart with cyber-secrets stuffed in their figurative pockets cost industry a staggering, and annually increasing sum currently pegged at $250 billion per year. See “NSA Chief: Cybercrime constitutes the ‘greatest transfer of wealth in history,’” The Cable (July 9, 2012).

Universal dependence on advanced technology means that intellectual property is the lifeblood of most modern corporations, and its theft is potentially debilitating. Upon discovery of suspected theft, the temptation to seek criminal prosecution under the federal Economic Espionage Act as retribution and deterrence can be overwhelming. But corporate counsel do well to pause, consider carefully, and consult outside counsel with broad criminal law experience before turning to the United States with a criminal referral.

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