47 Geo. J. Int'l L. 833 (2015-2016)
The Big Bluff: Obama, Cyber Economic Espionage, and the Threat of WTO Litigation

handle is hein.journals/geojintl47 and id is 838 raw text is: 






    THE BIG BLUFF: OBAMA, CYBER ECONOMIC
       ESPIONAGE, AND THE THREAT OF WTO
                          LITIGATION


                          JAMIE STRAWBRIDGE*

                              ABSTRACT

   Cyber hacking conducted by foreign governments against private U.S. compa-
nies costs the U.S. economy billions of dollars each year and threatens U.S.
national security. Although the Obama administration and members of the U.S.
Congress argue this cyber economic espionage violates World Trade Organiza-
tion (WTO) rules, no detailed academic study exists to validate or disprove that
assertion. This Note provides a much-needed initial analysis by scrutinizing
several possible bases for claiming that cyber economic espionage violates WTO
rules. It also highlights potential challenges that would face the U.S. government
(or any WTO Member) were it to pursue such a claim in court. While concluding
that cyber economic espionage likely does not violate WTO rules, this Note
highlights the strategic benefits of threatening legal action- especially when
paired with other measures designed to discourage hacking.

  I. INTRODUCTION  ....................................  834
  II. PROCEDURAL ISSUES: WTO MEASURES AND THE SCOPE OF
     CHALLENGED CONDUCT ...............................  838
     A. Option One: Challenging a Single, Past Cyber Attack ..... 839
     B. Option Two: Alternative Constructions of the Measure At
          Issue ........................................  841
          1. Mounting an As Such Challenge ............. 841
          2. Mounting a Modified As Applied Challenge .... 842
          3. Challenging a WTO Member Practice .......... 844
III. TRIPS ARTICLE 2.1 & THE PARIS CONVENTION ............. 845
     A.   Introduction ..................................  845
     B. Obligations Under Paris Convention Article lObis ........ 847
          1. The Definition and Scope of Unfair
              Com petition...............................  848
          2. Act of Competition & Contrary To Honest
              Practices..................................  851


   * Georgetown University Law Center, J.D. 2016. Jamie Strawbridge is the former managing
editor of Inside US. Trade, a weekly publication covering U.S. international trade policy and
politics.  2016,Jamie Strawbridge.

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