Generally, trade secrets have been protected under the law for more than 200 years.¹ Trade secrets, such as Google’s algorithm and New York Times Best Sellers List,² have proven to be valuable assets to their respective companies. According to the U.S. Chambers of Commerce, publicly traded corporations hold trade secrets valuing 5 trillion dollars.³ However, in the wake of modern digital technology advancement, trade secrets have become more vulnerable to loss or dissemination.⁴ From 2000 to 2001, Fortune 1000 companies reported losses totaling $53 to $59 million in trade secret violations.⁵ Further, in 2008, companies worldwide lost about $4.6 million on average due to security breaches and trade secret theft.⁶ Many of these breaches come not from international data threats but from ordinary company employees—rogue employees who steal valuable trade secrets from their previous employers.⁷

In order to better protect companies from losing their valuable trade secrets and preventing irreparable harm, Congress enacted the Defend Trade Secrets Act of 2016 (DTSA),⁸ the first federal civil protection given for trade secrets.⁹ Before the DTSA, state and common laws individually protected trade secrets, which resulted in varying protections across the United States.¹⁰ The DTSA was passed in order to unify trade secret law and provide clear guidelines for claims brought in federal court.¹¹ The DTSA has been around for almost three years now, yet critics of the statute have questioned whether the statute has met its purported goals of uniformity, providing clarity and predictability, drawing a narrow federal civil cause of action, and increasing the efficiency of litigation.¹² To better meet its goals, scholars have suggested that the DTSA preempt state law and get rid of state trade secret law altogether.¹³

In this paper, I argue that the DTSA has indeed not met its supposed goals, but the solution does not lie in preempting state law. Firstly, I explain the history, goals, and provisions of the DTSA and how it has failed to meet the original goals over the past three years. Secondly, I explain the argument for the DTSA to preempt state law and its supposed remedies. Thirdly, I reject the preemption argument and argue that to do so would leave some trade secrets without a remedy, harm state interests, take away an additional cause of action to trade secret theft victims, overburden the federal courts, and would not clarify the DTSA. Lastly, I provide recommendations for how to better improve the DTSA to meet its goals and create more consistent and clear trade secret jurisprudence.