Hanjuan Jin lost the appeal of her conviction under the Economic Espionage Act for theft of trade secrets. She worked for Motorola from 1998 to 2007, when she was apprehended by customs with $31,000 in her luggage, a one-way ticket to China, and thousands of Motorola documents that she had downloaded. The documents described Motorola’s dated iDEN mobile communications system, which Judge Posner said is still used by “law enforcement, emergency responders, taxicab dispatchers, and the like” as well as “the Israeli and South Korean armed forces.”
Posner upheld her sentence of 48 months and said that she was lucky that the lower court gave her a “surprising break” for “acceptance of responsibility” even though she pled not guilty and went to trial. Posner believes in trade secret protection. He once said, “trade secret protection is an important part of intellectual property, a form of property that is of growing importance to the competitiveness of American industry.” Rockwell Graphic Sys., Inc. v. DEV Indus., Inc., 925 F.2d 174, 180 (7th Cir. 1991).
Posner criticized the definition of “trade secret” in the Economic Espionage Act (at 18 U.S.C. § 1839(3)(B)) as being an “elaborate” definition that permitted the defendant to challenge whether the documents that she had stolen were in fact trade secrets. He implied that the common law definition (Restatement (Third) of Unfair Competition § 39), which is a single sentence, is better.
In affirming Hanjuan Jin’s conviction, Posner emphasized that “potential value” is sufficient to a finding of trade secrets and that actual value is not a requirement, providing an analogy that may be useful to practitioners: if “a company in New Orleans had stolen the iDEN technology and was about to sell its first subscription to its brand-new iDEN network when Hurricane Katrina destroyed the company,” Motorola would still have experienced harm because Motorola would have had to upgrade its security and its reputation would have been harmed.