This February marked one year since the publication of Law 1/2019, of February 20, on Business Secrets. In its preamble it is declared that organizations use confidentiality as a tool for managing business competitiveness, public-private knowledge transfer and research innovation, with the aim of protecting information that covers not only technical or scientific knowledge, but also business data related to customers and suppliers, business plans and market studies or strategies.
However, Innovative entities are increasingly exposed to unfair practices that pursue the misappropriation of business secrets, such as theft, unauthorized copying, economic espionage or failure to comply with confidentiality requirements. Globalization, increasing outsourcing, longer supply chains and greater use of information and communication technologies contribute to increasing the risk of such practices.
Criminal law doctrine has always agreed to also criminally protect the most serious attacks on industrial or business secrets, in line with the countries around us. Currently, corporate espionage is classified in art. 278 of the Penal Code.
The wave of technological innovation has emboldened certain threat actors, capable of deleting large amounts of a company's data in seconds, exposing companies to a greater risk of being hacked by their competitors, foreign governments and hacktivist groups. State-sponsored corporate espionage is real and growing in a globalized and cyber economy.
However, many companies will not know the true value of their confidential information until it is stolen, which can have devastating consequences. Even the intelligence services of EU Member States acknowledge that they are “groping in the dark” regarding cases of economic espionage. A key reason for the lack of data on cyber theft of trade secrets is that many intrusions go undetected.
Cyber theft of business secrets affects SMEs the most that big companies
According to ECIP (February 2018), the negative impact on the EU as a result of cyber theft of business secrets is around €60.000 billion in lost economic growth, resulting in a loss of competitiveness and employment and a reduction of investments in R&D. More specifically, 289.000 jobs could have been at risk in 2018, and that number would rise to one million jobs by 2025. Cyber theft of trade secrets affects SMEs more than large companies, due to its low budgets, lack of awareness of being a spy target and lack of qualified IT professionals.
We found a surprising 64% increase in security incidents attributed to competing companies, some of which may be supported by governments. In carrying out attacks, competitors often fuse sophisticated high-tech techniques with other methods such as recruiting employees of the target company, bribery, extortion and the promise of a new job. The increase in cybercrimes attributed to states and competitors occurs at the same time as the number of thefts of intellectual property and other sensitive information increases.
One of the most important current conflicts in the field of technology and security worldwide is the Huawei case, a company that the US accuses, among other crimes, of industrial espionage. The problem has numerous aspects, from industrial espionage when using foreign equipment to the arrival of new technology such as 5G and the trade war between China and the US.
Reluctance to hand over projects to Chinese companies for fear of espionage has reached Europe
The Talent Programs Chinese companies, in which experts are recruited from companies and universities around the world with multiple incentives to work in China, have been in the FBI's crosshairs since 2015 due to the threats they pose to North American companies and universities.
Reluctance to hand over projects to Chinese companies for fear of espionage has also reached Europe. The EU is the first destination for Chinese companies. In 2017 alone, they invested more than 35.000 billion euros in Europe, with almost 60% of that capital destined for infrastructure and communications, which has caused several countries to view with special concern the entry of Chinese public capital into strategic companies and fear that These acquisitions involve a technological transfer to Beijing.
Cyber espionage as a common practice of certain governments is recognized by the National Cryptological Center and, along the same lines, the National Cybersecurity Strategy 2019.
The higher the technological level of a country, the greater the risk of its companies being attacked.
These attacks are usually directed against industrial sectors, critical and strategic infrastructures around the world with the aim of obtaining geopolitical benefits, state and/or business secrets, intellectual or industrial property, as well as data and information from strategic sectors.
The volume of business secrets stored electronically, coupled with the increase in cyber intrusions, has created a perfect storm for economic espionage. The higher the technological level a country has, the greater the risk of its companies suffering from attacks of this type. Consequently, companies will find themselves involved in trade and technological wars not only with other companies but also between states themselves. Hence, it is of extraordinary importance to have effective and rapid criminal responses to corporate espionage.
Author Juan José Caselles
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