Andrew Frohlich · April 2010
78 GEO. WASH. L. REV. 668 (2010)
The McFate/Sapone saga is not a mere isolated incident, but rather a misstep which has thrust into the public light an industry about which little is publicly known: citizen-group espionage. Corporations—and occasionally rival nonprofit organizations—sometimes seek an unfair advantage in the debate of ideas by using espionage to gain access to confidential information possessed by citizen-groups. Not only is this type of activity offensive to our fundamental democratic values of openness and fair play, it poses a threat to the functioning of our nation’s venerated “marketplace of ideas.” Nevertheless, because this information is noneconomic in nature, both federal and state laws fail to provide a satisfactory solution to citizen-group organizations that are targeted for espionage.
Groups victimized by these dishonest practices should be provided the same legal protections that currently exist for corporations that suffer economic espionage. Accordingly, this Note presents a possible solution that would address the needs of vulnerable citizen groups: Congress should enact legislation criminalizing the theft of confidential information possessed by citizen groups by means of espionage. To that end, this Note proposes a Citizen-Group Espionage Act for Congress to enact. Such protection would guarantee that citizen groups are not deterred from competing in the marketplace of ideas, would prevent actors from benefiting from their deception, and would ensure that the choices presented to the public in the marketplace of ideas were produced freely and fairly.
This Note begins in Part I by providing background on the existence of citizen-group espionage as an underground industry. Part I further explains how citizen-group espionage poses a threat to the fundamental values and the functioning of a fair and open democracy. Part II examines why current law, including four potential causes of action—theft of trade secrets, the breach of confidence tort, the tort of invasion of privacy, and fraud—do not offer a viable solution to citizen-group espionage. Finally, Part III proposes the Citizen-Group Espionage Act (“the Act”) as a solution to the problem of citizen-group espionage. It first describes why it should be Congress that regulates citizen-group espionage; it then presents the proposed text of the Act accompanied by explanations of the provisions. This Note concludes by applying the Act to the McFate facts, illustrating the effectiveness of the proposed legislation in addressing citizen-group espionage.
