Camilla Hrdy points out that you can’t sue for trade secret theft if the information stolen is not actually protected as a trade secret. But you can charge someone with attempted trade secret theft even if the information wasn’t a trade secret. Which means you can go to jail for attempted trade secret theft even if you couldn’t be sued for it. That is a weird inversion.
The Levandoski indictment brings counts of criminal theft and attempted theft of trade secrets. (There is no conspiracy charge, which perhaps suggests the government will not argue Uber was knowingly involved.) But the inclusion of an “attempt” crime means the key question is not just whether Levandowski stole actual trade secrets. It is whether he attempted to do so while having the appropriate state of mind. The criminal provisions under which Levandowski is charged, codified in18 U.S.C. §§ 1832(a)(1), (2), (3) and (4), provide that “[w]hoever, with intent to convert a trade secret … to the economic benefit of anyone other than the owner thereof, and intending or knowing that the offense will, injure any owner of that trade secret, knowingly—steals…obtains… possesses…[etcetera]” a trade secret, or “attempts to” do any of those things, “shall… be fined under this title or imprisoned not more than 10 years, or both…”Anthony Levandowski: Is Being a Jerk a Crime?