by Unknown
a computer in 2025 will be sixty-four times faster than it is in 2013. Another predictive law, this one of photonics (regarding the transmission of information), tells us that the amount of data coming out of fiber-optic cables, the fastest form of connectivity, doubles roughly every nine months. Even if these laws have natural limits, the promise of exponential growth unleashes possibilities in graphics and virtual reality that will make the online experience as real as real life, or perhaps even better.
Schmidt and Cohen (2013, p. 5)
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Photonics includes the generation, emission, transmission, modulation, signal processing, switching, amplification, and detection and sensing of light.
Photonics emphasizes that photons are neither particles nor waves but have both particle and wave nature. It covers all technical applications of light over the whole spectrum, from ultraviolet, through the visible, to the near, mid, and far IR. The exponential function is used to model a relationship in which a constant change in the independent variable gives the same proportional change (i.e., percentage increase or decrease) in the dependent variable. The function is often written as exp( x), especial y when it is impractical to write the independent variable as a superscript. The exponential function is widely used in physics, chemistry, engineering, mathematical biology, economics, and mathematics.
Steve Jobs said that
Creativity is just connecting things. When you ask creative people how they did something, they feel a little guilty because they didn’t really do it, they just saw something. It seemed obvious to them after a while. That’s because they were able to connect experiences they’ve had and synthesize new things.
http:/ www.brainyquote.com/quotes/authors/s/steve_jobs.html
(June 5, 2013)
Schmidt and Cohen observe that current events influence technology and
technology influences current events, saying “…just as we began to share
ideas about the future, a string of highly visible world events occurred that exemplified the very concepts and problems we were debating.” They illustrate this with several examples:
The Chinese government launched sophisticated cyber attacks on Google and dozens of other American companies; Wikileaks burst onto the scene, making hundreds of thousands of classified digital records universally accessible; major earthquakes in Haiti and Japan devastated cities but generated innovative tech-driven responses; and the revolution of the Arab Spring shook the world with their speed, strength and contagious mobilization effects. Each turbulent development introduced new angles and possibilities about the future for us to consider.
Schmidt and Cohen (2013, pp. 10–11)
The importance of emerging technology in the national security arena cannot be overemphasized. Schmidt and Cohen write, “Some cyber-security experts
peg the cost of the new ‘cyber-industrial complex’ somewhere between $80
billion and $150 billion annually.” They opine that, “Countries with strong engineering sectors like the United States have the human capital to build their virtual weapons ‘in-house,’ but what of the states whose populations’
technical potential is underdeveloped? …China and the United States will
be the largest suppliers but by no means the only ones; government agencies
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and private companies from all over the world will compete to offer prod-
ucts and services to acquisitive nations….” They go on to note, “A raid on the Egyptian state security building after the country’s 2011 revolution produced explosive copies of contracts with private outlets, including an obscure British firm that sold online spyware to the Mubarak regime.” (Schmidt & Cohen 2013, p. 110)
Strengths, Weaknesses, Opportunities, and Threats
Schmidt and Cohen write, “The unavoidable truth is that connectivity
benefits terrorists and violent extremists too; as it spreads, so will the risks. Future terrorist activity will include physical and virtual aspects, from recruitment to implementation” (Schmidt & Cohen, 2013, p. 151).
They also observe that
This is the “big data” challenge that government bodies and other institutions around the world are facing: How can intelligence agencies, military divisions and law enforcement integrate all of their digital databases into a centralized structure so that the right dots can be connected without violating citizens’
privacy? In the United States, for example, the FBI, State Department, CIA, and other government agencies all use different systems. We know computers can find patterns, anomalies and other relevant signifiers much more
efficiently than human analysts can, yet bringing together disparate information systems (passport information, fingerprint scans, bank withdrawals, wiretaps, travel records) and building algorithms that can efficiently cross-reference them, eliminate redundancy and recognize red flags in the data is an incredibly difficult and time-consuming task.
Schmidt and Cohen (2013, p. 174)
In mathematics and computer science, an algorithm is a step-by-step procedure for calculations, usually used for calculation, data processing, and automated reasoning.
Emerging technologies influence the tradecraft of every filed, including
the intelligence community; Gen. Michael Hayden, former director of the
CIA, stated
Global security can be formed or threatened by heads of state whose wisdom, folly and obsessions shape global events. But often it is the security practitioners, those rarely in the headlines but whose craft and energy quietly break new ground, who keep us safe or put us in peril.
Innovation is the key to holding the tactical and strategic edge in a competitive world.
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Misappropriation from Computers
Advantacare Health Partners, LP v. Access IV, 2004 WL 1837997 (N.D.Cal.
2004); sanctions for misappropriation .
The plaintiff brought an action against former employees for misappropri-
ation of the plaintiff’s computer files. The plaintiff performed a forensic analysis of the employees’ former work computers and discovered that they had copied confidential files prior to leaving the company. These files included information such as the plaintiff’s patient database, budget documents, employees’ wages, referral statistics, marketing materials, and other items. Based on this evidence, the court granted the plaintiffs’ request to make forensic copies of the defendants’ current home and business computers. A computer forensic expert discovered that after the court issued the order, numerous computer searches for data deletion software were performed, and scrub software was used to delete more than 13,000 files from the defendant’s home and office computers.
Based on these facts, the court ordered the defendants to permanently delete the remaining files and authorized the plaintiffs to reimage the defendants’
hard drives to verify compliance. A forensic computer examiner reimaged the defendants’ hard drives and found that thousands of the plaintiff’s files remained on the drives. The plaintiff claimed that the actions of the defendant caused prejudice to the merits of its case and requested the court to enter a default judgment.
The court found that the defendants’ actions, while culpable, did not
warrant granting the sanction of default judgment. The court was not sure that the circumstances were extraordinary and determined that lesser sanctions would be as effective as a default judgment. The court granted evidence sanctions, instructing the trier of fact to presume that the defendants had copied all of the plaintiffs’ computer files. The defendants were also ordered to pay monetary sanctions in the amount of $20,000 within 30 days.
Kalish v. Leapfrog Online, Illinois Circuit Court of Cook County Case No. 03 L 11695 (Jason Kalis
h, an individual, v. Leapfrog Online Customer Acquisition, LLC, a Delaware limited liability company; David Husain,
an individual; Scott Eskamp, an individual; and Jason Wadler, an indi-
vidual); misappropriation of a trade secret.
Plaintiff Jason Kalish sued Leapfrog Online after he left the company,
claiming that the company owed him $781,632 in commissions and salary.
A computer forensics firm was hired to inspect Jason Kalish’s work computer and found a zip file of company data that had been e-mailed outside the company on Jason Kalish’s last day of work. Leapfrog Online then sued Jason
Kalish for misappropriation of a trade secret.
After several months, Jason Kalish admitted to e-mailing a zip file to his home computer but refused to allow inspection of that machine. Leapfrog
Online sought a court order compelling an inspection of Jason Kalish’s home
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computer, but Jason Kalish objected to the choice of the independent expert, since Leapfrog already used the firm in this case. The defendants’ attorney, Peter Land of Babbitt & Melton, LLP, filed a Reply In Support of Motion to Compel, stating
…there is no reason not to select Forensicon. The company routinely works as a neutral third party examiner, is practiced at complying with protective orders, and fully understands the need to protect a producing party’s privacy…
There is no reason to suspect that Forensicon would disclose non-responsive materials to Defendants or anyone else… Plaintiff’s true concern appears to be that Forensicon’s experience with Mr. Jason Kalish’s other deceptive computer conduct will result in a more thorough, effective search for responsive documents. This is a reason to select Forensicon, not reject it.
Cook County Circuit Court ordered the forensics firm to perform a forensic examination of Jason Kalish’s home computer to establish whether the plaintiff left the company with Leapfrog Online property and the firm provided a report detailing their findings. Shortly thereafter, the parties agreed to dismiss all claims without any compensation to Jason Kalish or his counsel;
plaintiff Jason Kalish paid Leapfrog Online a significant sum of money.
LeJeune v. Coin Acceptors, Inc. , 2004 WL 1067795 (Md. 2004); employee’s attempt to download employer’s confidential documents shows misappropriation of trade secrets; doctrine of “inevitable disclosure” not applicable .
The plaintiff filed a motion for a temporary injunction to enjoin the defendant from using trade secrets that the plaintiff believed the defendant had misappropriated. The defendant claimed that any trade secrets that he had copied were coincidental. He claimed that he was attempting to copy personal photos that were in the “My Documents” folder of the hard drive and because he did not know how to separate files, he copied the whole “My Documents” folder.
The plaintiffs hired a computer forensic expert who was able to refute
the defendant’s statement by showing that not only had the defendant copied one of the plaintiff’s files that was not in the “My Documents” folder, but the defendant had also attempted to erase the record of the file transfer.
The trial court ruled, and the appellate court affirmed, that this was
a misappropriation of trade secrets. The trial court granted the plaintiff’s motion for the preliminary injunction based on the doctrine of inevitable disclosure. However, the appellate court disagreed with this part of the ruling, vacated the injunction, and remanded the case for further proceedings.
The appellate court did not agree with the trial court’s ruling on the issue of inevitable disclosure for the following reasons:
1. The doctrine permits an employer to enjoin the former employee
without proof of the employee’s actual or threatened use of trade
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secrets based upon an inference (based upon circumstantial evi-
dence) that the employee will use his or her knowledge of those trade
secrets in the course of his new employment. The result is not merely
an injunction against the use of trade secrets, but an injunction
which restricts employment.
2. If “inevitable disclosure” was applied in this case, then the plaintiff would benefit from a noncompete agreement even though it never
negotiated one with the defendant.
3. The adoption of the doctrine would permit the court to infer “inevi-
table disclosure” from the employee’s mere exposure to trade secrets.
Liebert Corporation v. Mazur, 2005 WL 762954 (Ill. App. 2005); expert testimony shows misappropriation of trade secrets; doctrine of “inevitable disclosure.”
Liebert Corporation, a network protection equipment company, and
Zonatherm, its exclusive sales representative, brought an action to enjoin a former employee of Zonatherm from using trade secrets in a competing
business. The trial court denied the plaintiff’s motion for a preliminary injunction on the basis that the plaintiff had not established that the price books, which had been established as trade secrets, were actually misappropriated. The trial court found that business cards and customer lists taken from the plaintiff were not trade secrets. In the case of the price books, the trial court found these to be trade secrets, but since the information was destroyed, there was no way of knowing whether it had been used by the
defendant or if it had been disclosed to any other parties.
On appeal, the plaintiffs argued that the trial court abused its discre-
tion when (1) it found the customer lists were not trade secrets, (2) it failed to decide whether the sales quotations were trade secrets, (3) it found the plaintiffs did not present a fair question on the likelihood of success on their trade secret misappropriation claims because the defendants no longer had the information, (4) it found no fair question that the defendants would inevitably use the trade secrets, and (5) it found that the plaintiffs’ allegations of irreparable harm were speculative.
The court held that in order for something to be considered a trade secret (under Illinois statute), it must have two characteristics: (1) it must be sufficiently secret to give the plaintiff a competitive advantage, and (2) the plaintiff must take affirmative measures to keep others from acquiring the information.
The reviewing court found that although the price lists were secret, the
plaintiff did not take affirmative steps to keep others from acquiring the customer lists. The court found the same in the case of the sales quotations. The plaintiff did not make its employees aware of the fact that the bids and sales quotations were confidential and did not require employees sign a confidentiality agreement.
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The court agreed with the trial court that the price books were a trade
secret. As to whether the plaintiff presented a fair question as to the likelihood of the success of its misappropriation claim, the court held that
misappropriation can be found in one of three ways: (1) improper acquisition, (2) unauthorized disclosure, or (3) unauthorized use.
To determine whether there had been misappropriation, the court exam-
ined the testimony of both the defendant and plaintiff’s computer forensics expert. The expert was hired by the plaintiffs to examine the hard drive of the defendant’s laptop computer. The expert created an image of the laptop’s hard drive, performed extensive searches for the plaintiff’s files, and compared files he found on the laptop’s hard drive with those he had been provided with by the plaintiffs. The expert testified that he had found files, which contained the plaintiff’s price books on the defendant’s hard drive, and that these files had been compressed on the defendant’s hard drive and then put into a folder containing the plaintiff’s price book docum
ents. The files were then transferred into a CD burning folder on the defendant’s laptop.
According to the expert, most users are not aware of the CD burning file
folder. He testified that the fact that the folder of compressed files from the defendant’s hard drive went into the CD burning folder 3 minutes after the additional price book files were added to it made it more likely than not that the defendant had successful y burned the CD. He also testified that on the same day the files went into the CD burning folder, the defendant began a mass wave of deletion. The expert found that the defendant had purged his application log, which would have established when the CD burning program was used, and how many CDs were successful y burned.
In the defendant’s testimony, he provided two explanations for his
downloading and deletions of the plaintiff’s files onto and off of his laptop.
First, he said that he wanted to preserve a record for his outstanding commissions. The court found that this would explain his need for the price quotations, but not for the price books. Second, he explained that he was trying to create a closeout document for his team and that he wasn’t sure that his col-leagues would know which price quotes he had used for which bids.
The court was not persuaded by this explanation because (1) if the defen-
dant could get this information, then his team members, with the same
access, could as well, and (2) the defendant never handed off the information to his team. The defendant said that the reason for his deletion was that the files were no longer needed. The court did not believe this because the defendant had testified that his efforts to burn a CD were unsuccessful, but he had also testified that the files were necessary for his team.
The reviewing court found that the plaintiffs had presented a fair ques-
tion on misappropriation against the defendant. The next part of the inquiry was to determine whether preliminary injunctive relief was an appropriate remedy. In this case, the plaintiff used the theory of inevitable disclosure.
