Text: S.1890 — 114th Congress (2015-2016)All Information (Except Text)

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Public Law No: 114-153 (05/11/2016)

 
[114th Congress Public Law 153]
[From the U.S. Government Publishing Office]



[[Page 375]]

                    DEFEND TRADE SECRETS ACT OF 2016

[[Page 130 STAT. 376]]

Public Law 114-153
114th Congress

                                 An Act


 
To amend chapter 90 of title 18, United States Code, to provide Federal 
       jurisdiction for the theft of trade secrets, and for other 
             purposes. <<NOTE: May 11, 2016 -  [S. 1890]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, <<NOTE: Defend Trade 
Secrets Act of 2016. 18 USC 1 note.>> 
SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Defend Trade Secrets Act of 2016''.
SEC. 2. FEDERAL JURISDICTION FOR THEFT OF TRADE SECRETS.

    (a) In General.--Section 1836 of title 18, United States Code, is 
amended by striking subsection (b) and inserting the following:
    ``(b) Private Civil Actions.--
            ``(1) In general.--An owner of a trade secret that is 
        misappropriated may bring a civil action under this subsection 
        if the trade secret is related to a product or service used in, 
        or intended for use in, interstate or foreign commerce.
            ``(2) Civil seizure.--
                    ``(A) In general.--
                          ``(i) Application.--Based on an affidavit or 
                      verified complaint satisfying the requirements of 
                      this paragraph, the court may, upon ex parte 
                      application but only in extraordinary 
                      circumstances, issue an order providing for the 
                      seizure of property necessary to prevent the 
                      propagation or dissemination of the trade secret 
                      that is the subject of the action.
                          ``(ii) Requirements for issuing order.--The 
                      court may not grant an application under clause 
                      (i) unless the court finds that it clearly appears 
                      from specific facts that--
                                    ``(I) an order issued pursuant to 
                                Rule 65 of the Federal Rules of Civil 
                                Procedure or another form of equitable 
                                relief would be inadequate to achieve 
                                the purpose of this paragraph because 
                                the party to which the order would be 
                                issued would evade, avoid, or otherwise 
                                not comply with such an order;
                                    ``(II) an immediate and irreparable 
                                injury will occur if such seizure is not 
                                ordered;
                                    ``(III) the harm to the applicant of 
                                denying the application outweighs the 
                                harm to the legitimate interests of the 
                                person against whom seizure would be 
                                ordered of granting the application and

[[Page 130 STAT. 377]]

                                substantially outweighs the harm to any 
                                third parties who may be harmed by such 
                                seizure;
                                    ``(IV) the applicant is likely to 
                                succeed in showing that--
                                            ``(aa) the information is a 
                                        trade secret; and
                                            ``(bb) the person against 
                                        whom seizure would be ordered--
                                                ``(AA) misappropriated 
                                            the trade secret of the 
                                            applicant by improper means; 
                                            or
                                                ``(BB) conspired to use 
                                            improper means to 
                                            misappropriate the trade 
                                            secret of the applicant;
                                    ``(V) the person against whom 
                                seizure would be ordered has actual 
                                possession of--
                                            ``(aa) the trade secret; and
                                            ``(bb) any property to be 
                                        seized;
                                    ``(VI) the application describes 
                                with reasonable particularity the matter 
                                to be seized and, to the extent 
                                reasonable under the circumstances, 
                                identifies the location where the matter 
                                is to be seized;
                                    ``(VII) the person against whom 
                                seizure would be ordered, or persons 
                                acting in concert with such person, 
                                would destroy, move, hide, or otherwise 
                                make such matter inaccessible to the 
                                court, if the applicant were to proceed 
                                on notice to such person; and
                                    ``(VIII) the applicant has not 
                                publicized the requested seizure.
                    ``(B) Elements of order.--If an order is issued 
                under subparagraph (A), it shall--
                          ``(i) set forth findings of fact and 
                      conclusions of law required for the order;
                          ``(ii) provide for the narrowest seizure of 
                      property necessary to achieve the purpose of this 
                      paragraph and direct that the seizure be conducted 
                      in a manner that minimizes any interruption of the 
                      business operations of third parties and, to the 
                      extent possible, does not interrupt the legitimate 
                      business operations of the person accused of 
                      misappropriating the trade secret;
                          ``(iii)(I) be accompanied by an order 
                      protecting the seized property from disclosure by 
                      prohibiting access by the applicant or the person 
                      against whom the order is directed, and 
                      prohibiting any copies, in whole or in part, of 
                      the seized property, to prevent undue damage to 
                      the party against whom the order has issued or 
                      others, until such parties have an opportunity to 
                      be heard in court; and
                          ``(II) provide that if access is granted by 
                      the court to the applicant or the person against 
                      whom the order is directed, the access shall be 
                      consistent with subparagraph (D);
                          ``(iv) provide guidance to the law enforcement 
                      officials executing the seizure that clearly 
                      delineates the scope of the authority of the 
                      officials, including--

[[Page 130 STAT. 378]]

                                    ``(I) the hours during which the 
                                seizure may be executed; and
                                    ``(II) whether force may be used to 
                                access locked areas;
                          ``(v) <<NOTE: Deadline. Notification.>>  set a 
                      date for a hearing described in subparagraph (F) 
                      at the earliest possible time, and not later than 
                      7 days after the order has issued, unless the 
                      party against whom the order is directed and 
                      others harmed by the order consent to another date 
                      for the hearing, except that a party against whom 
                      the order has issued or any person harmed by the 
                      order may move the court at any time to dissolve 
                      or modify the order after giving notice to the 
                      applicant who obtained the order; and
                          ``(vi) require the person obtaining the order 
                      to provide the security determined adequate by the 
                      court for the payment of the damages that any 
                      person may be entitled to recover as a result of a 
                      wrongful or excessive seizure or wrongful or 
                      excessive attempted seizure under this paragraph.
                    ``(C) <<NOTE: Courts.>>  Protection from 
                publicity.--The court shall take appropriate action to 
                protect the person against whom an order under this 
                paragraph is directed from publicity, by or at the 
                behest of the person obtaining the order, about such 
                order and any seizure under such order.
                    ``(D) Materials in custody of court.--
                          ``(i) In general.--Any materials seized under 
                      this paragraph shall be taken into the custody of 
                      the court. The court shall secure the seized 
                      material from physical and electronic access 
                      during the seizure and while in the custody of the 
                      court.
                          ``(ii) Storage medium.--If the seized material 
                      includes a storage medium, or if the seized 
                      material is stored on a storage medium, the court 
                      shall prohibit the medium from being connected to 
                      a network or the Internet without the consent of 
                      both parties, until the hearing required under 
                      subparagraph (B)(v) and described in subparagraph 
                      (F).
                          ``(iii) Protection of confidentiality.--The 
                      court shall take appropriate measures to protect 
                      the confidentiality of seized materials that are 
                      unrelated to the trade secret information ordered 
                      seized pursuant to this paragraph unless the 
                      person against whom the order is entered consents 
                      to disclosure of the material.
                          ``(iv) Appointment of special master.--The 
                      court may appoint a special master to locate and 
                      isolate all misappropriated trade secret 
                      information and to facilitate the return of 
                      unrelated property and data to the person from 
                      whom the property was seized. The special master 
                      appointed by the court shall agree to be bound by 
                      a non-disclosure agreement approved by the court.
                    ``(E) Service of order.--The court shall order that 
                service of a copy of the order under this paragraph, and 
                the submissions of the applicant to obtain the order, 
                shall be made by a Federal law enforcement officer who, 
                upon

[[Page 130 STAT. 379]]

                making service, shall carry out the seizure under the 
                order. The court may allow State or local law 
                enforcement officials to participate, but may not permit 
                the applicant or any agent of the applicant to 
                participate in the seizure. <<NOTE: Determination.>> At 
                the request of law enforcement officials, the court may 
                allow a technical expert who is unaffiliated with the 
                applicant and who is bound by a court-approved non-
                disclosure agreement to participate in the seizure if 
                the court determines that the participation of the 
                expert will aid the efficient execution of and minimize 
                the burden of the seizure.
                    ``(F) Seizure hearing.--
                          ``(i) Date.--A court that issues a seizure 
                      order shall hold a hearing on the date set by the 
                      court under subparagraph (B)(v).
                          ``(ii) Burden of proof.--At a hearing held 
                      under this subparagraph, the party who obtained 
                      the order under subparagraph (A) shall have the 
                      burden to prove the facts supporting the findings 
                      of fact and conclusions of law necessary to 
                      support the order. If the party fails to meet that 
                      burden, the seizure order shall be dissolved or 
                      modified appropriately.
                          ``(iii) Dissolution or modification of 
                      order.--A party against whom the order has been 
                      issued or any person harmed by the order may move 
                      the court at any time to dissolve or modify the 
                      order after giving notice to the party who 
                      obtained the order.
                          ``(iv) Discovery time limits.--The court may 
                      make such orders modifying the time limits for 
                      discovery under the Federal Rules of Civil 
                      Procedure as may be necessary to prevent the 
                      frustration of the purposes of a hearing under 
                      this subparagraph.
                    ``(G) Action for damage caused by wrongful 
                seizure.--A person who suffers damage by reason of a 
                wrongful or excessive seizure under this paragraph has a 
                cause of action against the applicant for the order 
                under which such seizure was made, and shall be entitled 
                to the same relief as is provided under section 
                34(d)(11) of the Trademark Act of 1946 (15 U.S.C. 
                1116(d)(11)). The security posted with the court under 
                subparagraph (B)(vi) shall not limit the recovery of 
                third parties for damages.
                    ``(H) Motion for encryption.--A party or a person 
                who claims to have an interest in the subject matter 
                seized may make a motion at any time, which may be heard 
                ex parte, to encrypt any material seized or to be seized 
                under this paragraph that is stored on a storage medium. 
                The motion shall include, when possible, the desired 
                encryption method.
            ``(3) Remedies.--In a civil action brought under this 
        subsection with respect to the misappropriation of a trade 
        secret, a court may--
                    ``(A) grant an injunction--
                          ``(i) to prevent any actual or threatened 
                      misappropriation described in paragraph (1) on 
                      such terms as the court deems reasonable, provided 
                      the order does not--

[[Page 130 STAT. 380]]

                                    ``(I) prevent a person from entering 
                                into an employment relationship, and 
                                that conditions placed on such 
                                employment shall be based on evidence of 
                                threatened misappropriation and not 
                                merely on the information the person 
                                knows; or
                                    ``(II) otherwise conflict with an 
                                applicable State law prohibiting 
                                restraints on the practice of a lawful 
                                profession, trade, or business;
                          ``(ii) if determined appropriate by the court, 
                      requiring affirmative actions to be taken to 
                      protect the trade secret; and
                          ``(iii) in exceptional circumstances that 
                      render an injunction inequitable, that conditions 
                      future use of the trade secret upon payment of a 
                      reasonable royalty for no longer than the period 
                      of time for which such use could have been 
                      prohibited;
                    ``(B) award--
                          ``(i)(I) damages for actual loss caused by the 
                      misappropriation of the trade secret; and
                          ``(II) damages for any unjust enrichment 
                      caused by the misappropriation of the trade secret 
                      that is not addressed in computing damages for 
                      actual loss; or
                          ``(ii) in lieu of damages measured by any 
                      other methods, the damages caused by the 
                      misappropriation measured by imposition of 
                      liability for a reasonable royalty for the 
                      misappropriator's unauthorized disclosure or use 
                      of the trade secret;
                    ``(C) if the trade secret is willfully and 
                maliciously misappropriated, award exemplary damages in 
                an amount not more than 2 times the amount of the 
                damages awarded under subparagraph (B); and
                    ``(D) if a claim of the misappropriation is made in 
                bad faith, which may be established by circumstantial 
                evidence, a motion to terminate an injunction is made or 
                opposed in bad faith, or the trade secret was willfully 
                and maliciously misappropriated, award reasonable 
                attorney's fees to the prevailing party.

    ``(c) Jurisdiction.--The district courts of the United States shall 
have original jurisdiction of civil actions brought under this section.
    ``(d) Period of Limitations.--A civil action under subsection (b) 
may not be commenced later than 3 years after the date on which the 
misappropriation with respect to which the action would relate is 
discovered or by the exercise of reasonable diligence should have been 
discovered. For purposes of this subsection, a continuing 
misappropriation constitutes a single claim of misappropriation.''.
    (b) Definitions.--Section 1839 of title 18, United States Code, is 
amended--
            (1) in paragraph (3)--
                    (A) in subparagraph (B), by striking ``the public'' 
                and inserting ``another person who can obtain economic 
                value from the disclosure or use of the information''; 
                and
                    (B) by striking ``and'' at the end;
            (2) in paragraph (4), by striking the period at the end and 
        inserting a semicolon; and
            (3) by adding at the end the following:

[[Page 130 STAT. 381]]

            ``(5) the term `misappropriation' means--
                    ``(A) acquisition of a trade secret of another by a 
                person who knows or has reason to know that the trade 
                secret was acquired by improper means; or
                    ``(B) disclosure or use of a trade secret of another 
                without express or implied consent by a person who--
                          ``(i) used improper means to acquire knowledge 
                      of the trade secret;
                          ``(ii) at the time of disclosure or use, knew 
                      or had reason to know that the knowledge of the 
                      trade secret was--
                                    ``(I) derived from or through a 
                                person who had used improper means to 
                                acquire the trade secret;
                                    ``(II) acquired under circumstances 
                                giving rise to a duty to maintain the 
                                secrecy of the trade secret or limit the 
                                use of the trade secret; or
                                    ``(III) derived from or through a 
                                person who owed a duty to the person 
                                seeking relief to maintain the secrecy 
                                of the trade secret or limit the use of 
                                the trade secret; or
                          ``(iii) before a material change of the 
                      position of the person, knew or had reason to know 
                      that--
                                    ``(I) the trade secret was a trade 
                                secret; and
                                    ``(II) knowledge of the trade secret 
                                had been acquired by accident or 
                                mistake;
            ``(6) the term `improper means'--
                    ``(A) includes theft, bribery, misrepresentation, 
                breach or inducement of a breach of a duty to maintain 
                secrecy, or espionage through electronic or other means; 
                and
                    ``(B) does not include reverse engineering, 
                independent derivation, or any other lawful means of 
                acquisition; and
            ``(7) the term `Trademark Act of 1946' means the Act 
        entitled `An Act to provide for the registration and protection 
        of trademarks used in commerce, to carry out the provisions of 
        certain international conventions, and for other purposes, 
        approved July 5, 1946 (15 U.S.C. 1051 et seq.) (commonly 
        referred to as the ``Trademark Act of 1946'' or the ``Lanham 
        Act'')'.''.

    (c) Exceptions to Prohibition.--Section 1833 of title 18, United 
States Code, is amended, in the matter preceding paragraph (1), by 
inserting ``or create a private right of action for'' after 
``prohibit''.
    (d) Conforming Amendments.--
            (1) The section heading for section 1836 of title 18, United 
        States Code, is amended to read as follows:
``Sec. 1836. Civil proceedings''.
            (2) The table of sections for chapter 90 of title 18, United 
        States Code, <<NOTE: 18 USC 1831 prec.>> is amended by striking 
        the item relating to section 1836 and inserting the following:

``1836. Civil proceedings.''.

    (e) <<NOTE: Applicability. 18 USC 1833 note.>>  Effective Date.--The 
amendments made by this section shall apply with respect to any 
misappropriation of a trade secret (as defined in section 1839 of title 
18, United States Code, as

[[Page 130 STAT. 382]]

amended by this section) for which any act occurs on or after the date 
of the enactment of this Act.

    (f) <<NOTE: 18 USC 1833 note.>>  Rule of Construction.--Nothing in 
the amendments made by this section shall be construed to modify the 
rule of construction under section 1838 of title 18, United States Code, 
or to preempt any other provision of law.

    (g) <<NOTE: 18 USC 1833 note.>>  Applicability to Other Laws.--This 
section and the amendments made by this section shall not be construed 
to be a law pertaining to intellectual property for purposes of any 
other Act of Congress.
SEC. 3. TRADE SECRET THEFT ENFORCEMENT.

    (a) In General.--Chapter 90 of title 18, United States Code, is 
amended--
            (1) in section 1832(b), by striking ``$5,000,000'' and 
        inserting ``the greater of $5,000,000 or 3 times the value of 
        the stolen trade secret to the organization, including expenses 
        for research and design and other costs of reproducing the trade 
        secret that the organization has thereby avoided''; and
            (2) in section 1835--
                    (A) by striking ``In any prosecution'' and inserting 
                the following:

    ``(a) In General.--In any prosecution''; and
                    (B) by adding at the end the following:

    ``(b) Rights of Trade Secret Owners.--The court may not authorize or 
direct the disclosure of any information the owner asserts to be a trade 
secret unless the court allows the owner the opportunity to file a 
submission under seal that describes the interest of the owner in 
keeping the information confidential. No submission under seal made 
under this subsection may be used in a prosecution under this chapter 
for any purpose other than those set forth in this section, or otherwise 
required by law. The provision of information relating to a trade secret 
to the United States or the court in connection with a prosecution under 
this chapter shall not constitute a waiver of trade secret protection, 
and the disclosure of information relating to a trade secret in 
connection with a prosecution under this chapter shall not constitute a 
waiver of trade secret protection unless the trade secret owner 
expressly consents to such waiver.''.
    (b) RICO Predicate Offenses.--Section 1961(1) of title 18, United 
States Code, is amended by inserting ``sections 1831 and 1832 (relating 
to economic espionage and theft of trade secrets),'' before ``section 
1951''.
SEC. 4. <<NOTE: 18 USC 1832 note.>>  REPORT ON THEFT OF TRADE 
                    SECRETS OCCURRING ABROAD.

    (a) Definitions.--In this section:
            (1) Director.--The term ``Director'' means the Under 
        Secretary of Commerce for Intellectual Property and Director of 
        the United States Patent and Trademark Office.
            (2) Foreign instrumentality, etc.--The terms ``foreign 
        instrumentality'', ``foreign agent'', and ``trade secret'' have 
        the meanings given those terms in section 1839 of title 18, 
        United States Code.
            (3) State.--The term ``State'' includes the District of 
        Columbia and any commonwealth, territory, or possession of the 
        United States.

[[Page 130 STAT. 383]]

            (4) United states company.--The term ``United States 
        company'' means an organization organized under the laws of the 
        United States or a State or political subdivision thereof.

    (b) <<NOTE: Consultation. Public information. Web posting.>>  
Reports.--Not later than 1 year after the date of enactment of this Act, 
and biannually thereafter, the Attorney General, in consultation with 
the Intellectual Property Enforcement Coordinator, the Director, and the 
heads of other appropriate agencies, shall submit to the Committees on 
the Judiciary of the House of Representatives and the Senate, and make 
publicly available on the Web site of the Department of Justice and 
disseminate to the public through such other means as the Attorney 
General may identify, a report on the following:
            (1) The scope and breadth of the theft of the trade secrets 
        of United States companies occurring outside of the United 
        States.
            (2) The extent to which theft of trade secrets occurring 
        outside of the United States is sponsored by foreign 
        governments, foreign instrumentalities, or foreign agents.
            (3) The threat posed by theft of trade secrets occurring 
        outside of the United States.
            (4) The ability and limitations of trade secret owners to 
        prevent the misappropriation of trade secrets outside of the 
        United States, to enforce any judgment against foreign entities 
        for theft of trade secrets, and to prevent imports based on 
        theft of trade secrets overseas.
            (5) A breakdown of the trade secret protections afforded 
        United States companies by each country that is a trading 
        partner of the United States and enforcement efforts available 
        and undertaken in each such country, including a list 
        identifying specific countries where trade secret theft, laws, 
        or enforcement is a significant problem for United States 
        companies.
            (6) Instances of the Federal Government working with foreign 
        countries to investigate, arrest, and prosecute entities and 
        individuals involved in the theft of trade secrets outside of 
        the United States.
            (7) Specific progress made under trade agreements and 
        treaties, including any new remedies enacted by foreign 
        countries, to protect against theft of trade secrets of United 
        States companies outside of the United States.
            (8) <<NOTE: Recommenda- tions.>>  Recommendations of 
        legislative and executive branch actions that may be undertaken 
        to--
                    (A) reduce the threat of and economic impact caused 
                by the theft of the trade secrets of United States 
                companies occurring outside of the United States;
                    (B) educate United States companies regarding the 
                threats to their trade secrets when taken outside of the 
                United States;
                    (C) provide assistance to United States companies to 
                reduce the risk of loss of their trade secrets when 
                taken outside of the United States; and
                    (D) provide a mechanism for United States companies 
                to confidentially or anonymously report the theft of 
                trade secrets occurring outside of the United States.
SEC. 5. SENSE OF CONGRESS.

    It is the sense of Congress that--

[[Page 130 STAT. 384]]

            (1) trade secret theft occurs in the United States and 
        around the world;
            (2) trade secret theft, wherever it occurs, harms the 
        companies that own the trade secrets and the employees of the 
        companies;
            (3) chapter 90 of title 18, United States Code (commonly 
        known as the ``Economic Espionage Act of 1996''), applies 
        broadly to protect trade secrets from theft; and
            (4) it is important when seizing information to balance the 
        need to prevent or remedy misappropriation with the need to 
        avoid interrupting the--
                    (A) business of third parties; and
                    (B) legitimate interests of the party accused of 
                wrongdoing.
SEC. 6. <<NOTE: 28 USC 620 note.>>  BEST PRACTICES.

    (a) <<NOTE: Deadline.>>  In General.--Not later than 2 years after 
the date of enactment of this Act, the Federal Judicial Center, using 
existing resources, shall develop recommended best practices for--
            (1) the seizure of information and media storing the 
        information; and
            (2) the securing of the information and media once seized.

    (b) Updates.--The Federal Judicial Center shall update the 
recommended best practices developed under subsection (a) from time to 
time.
    (c) <<NOTE: Records.>>  Congressional Submissions.--The Federal 
Judicial Center shall provide a copy of the recommendations developed 
under subsection (a), and any updates made under subsection (b), to 
the--
            (1) Committee on the Judiciary of the Senate; and
            (2) Committee on the Judiciary of the House of 
        Representatives.
SEC. 7. IMMUNITY FROM LIABILITY FOR CONFIDENTIAL DISCLOSURE OF A 
                    TRADE SECRET TO THE GOVERNMENT OR IN A COURT 
                    FILING.

    (a) Amendment.--Section 1833 of title 18, United States Code, is 
amended--
            (1) by striking ``This chapter'' and inserting ``(a) In 
        General.--This chapter'';
            (2) in subsection (a)(2), as designated by paragraph (1), by 
        striking ``the reporting of a suspected violation of law to any 
        governmental entity of the United States, a State, or a 
        political subdivision of a State, if such entity has lawful 
        authority with respect to that violation'' and inserting ``the 
        disclosure of a trade secret in accordance with subsection 
        (b)''; and
            (3) by adding at the end the following:

    ``(b) Immunity From Liability for Confidential Disclosure of a Trade 
Secret to the Government or in a Court Filing.--
            ``(1) Immunity.--An individual shall not be held criminally 
        or civilly liable under any Federal or State trade secret law 
        for the disclosure of a trade secret that--
                    ``(A) is made--
                          ``(i) in confidence to a Federal, State, or 
                      local government official, either directly or 
                      indirectly, or to an attorney; and
                          ``(ii) solely for the purpose of reporting or 
                      investigating a suspected violation of law; or

[[Page 130 STAT. 385]]

                    ``(B) is made in a complaint or other document filed 
                in a lawsuit or other proceeding, if such filing is made 
                under seal.
            ``(2) Use of trade secret information in anti-retaliation 
        lawsuit.--An individual who files a lawsuit for retaliation by 
        an employer for reporting a suspected violation of law may 
        disclose the trade secret to the attorney of the individual and 
        use the trade secret information in the court proceeding, if the 
        individual--
                    ``(A) files any document containing the trade secret 
                under seal; and
                    ``(B) does not disclose the trade secret, except 
                pursuant to court order.
            ``(3) Notice.--
                    ``(A) <<NOTE: Contracts.>>  In general.--An employer 
                shall provide notice of the immunity set forth in this 
                subsection in any contract or agreement with an employee 
                that governs the use of a trade secret or other 
                confidential information.
                    ``(B) Policy document.--An employer shall be 
                considered to be in compliance with the notice 
                requirement in subparagraph (A) if the employer provides 
                a cross-reference to a policy document provided to the 
                employee that sets forth the employer's reporting policy 
                for a suspected violation of law.
                    ``(C) Non-compliance.--If an employer does not 
                comply with the notice requirement in subparagraph (A), 
                the employer may not be awarded exemplary damages or 
                attorney fees under subparagraph (C) or (D) of section 
                1836(b)(3) in an action against an employee to whom 
                notice was not provided.
                    ``(D) <<NOTE: Contracts.>>  Applicability.--This 
                paragraph shall apply to contracts and agreements that 
                are entered into or updated after the date of enactment 
                of this subsection.
            ``(4) Employee defined.--For purposes of this subsection, 
        the term `employee' includes any individual performing work as a 
        contractor or consultant for an employer.
            ``(5) Rule of construction.--Except as expressly provided 
        for under this subsection, nothing in this subsection shall be 
        construed to authorize, or limit liability for, an act that is 
        otherwise prohibited by law, such as the unlawful access of 
        material by unauthorized means.''.

    (b) Technical and Conforming Amendment.--Section 1838 of title 18, 
United States Code, is amended by striking ``This

[[Page 130 STAT. 386]]

 chapter'' and inserting ``Except as provided in section 1833(b), this 
chapter''.

    Approved May 11, 2016.

LEGISLATIVE HISTORY--S. 1890:
---------------------------------------------------------------------------

HOUSE REPORTS: No. 114-529 (Comm. on the Judiciary).
SENATE REPORTS: No. 114-220 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 162 (2016):
            Apr. 4, considered and passed Senate.
            Apr. 27, considered and passed House.
DAILY COMPILATION OF PRESIDENTIAL DOCUMENTS (2016):
            May 11, Presidential remarks.

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