812.081 Theft of or trafficking in trade secrets; definitions; penalties; providing to foreign entities; restitution.—
(1) As used in this section, the term:
(a) “Endeavor” means to attempt or to try.
(b) “Foreign agent” means any officer, employee, proxy, servant, delegate, or representative of a foreign government.
(c) “Foreign instrumentality” means any agency, bureau, ministry, component, institution, association, or any legal, commercial, or business organization, corporation, firm, or entity that is substantially owned, controlled, sponsored, commanded, managed, or dominated by a foreign government.
(d) “Obtain or use” has the same meaning as provided in s. 812.012(3).
(e) “Person” means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.
(f) “Trade secret” means the whole or any portion or phase of any formula, pattern, device, combination of devices, or compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it. The term includes any scientific, technical, or commercial information, including financial information, and includes any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof, whether tangible or intangible, and regardless of whether or how it is stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing. Irrespective of novelty, invention, patentability, the state of the prior art, and the level of skill in the business, art, or field to which the subject matter pertains, a trade secret is considered to be:
1. Secret;
2. Of value;
3. For use or in use by the business; and
4. Of advantage to the business, or providing an opportunity to obtain an advantage, over those who do not know or use it,
when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.
(g) “Traffic” has the same meaning as provided in s. 812.012(8).
(2) It is unlawful for a person to willfully and without authorization, obtain or use, or endeavor to obtain or use, a trade secret with the intent to either temporarily or permanently:
(a) Deprive or withhold from the owner thereof the control or benefit of a trade secret; or
(b) Appropriate a trade secret to his or her own use or to the use of another person not entitled to the trade secret.
A person who violates this subsection commits theft of a trade secret, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) A person who traffics in, or endeavors to traffic in, a trade secret that he or she knows or should know was obtained or used without authorization commits trafficking in trade secrets, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) Whenever a person is charged with a violation of this section which was committed with the intent to benefit a foreign government, a foreign agent, or a foreign instrumentality, the offense for which the person is charged shall be reclassified as follows:
(a) In the case of theft of a trade secret, from a felony of the third degree to a felony of the second degree.
(b) In the case of trafficking in trade secrets, from a felony of the second degree to a felony of the first degree.
For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 of the offense committed.
(5) A court shall order a person convicted of violating this section to pay restitution, which shall include the value of the benefit derived from the offense, including any expenses for research and design and other costs of reproducing the trade secret that the person has avoided by committing the offense.
(6) In a prosecution for a violation of this section, the fact that the person so charged returned or intended to return the unlawfully obtained or used trade secret is not a defense.
(7) A person who owns a trade secret that is unlawfully obtained or used may bring a civil action to enjoin the continued improper use of such trade secret, and a court may require affirmative actions to protect the trade secret. Where exceptional circumstances render an injunction inequitable, a court may condition future use of the trade secret on the payment of a reasonable royalty for no longer than the period of time for which such use could have been prohibited.
(8) A person may not be held criminally or civilly liable under this section for the disclosure of a trade secret when such disclosure is:
(a) Made confidentially to an attorney, law enforcement officer, or other federal, state, or local government official for the purpose of reporting or investigating a suspected violation of law; or
(b) Made in a complaint or other document filed under seal in a lawsuit or other proceeding.
History.—ss. 1, 2, 3, ch. 74-136; s. 1, ch. 85-34; s. 1240, ch. 97-102; s. 1, ch. 2016-5; s. 2, ch. 2021-75.
