U.S. Charges Engineer With Theft of Trade Secret at White Plains Software Company

JAMES B. COMEY, the United States Attorney for the Southern District of New York, and BARRY W. MAWN, the Assistant Director in Charge of the FBI’s New York Office, announced that TIMOTHY KISSANE was arrested and charged today in Manhattan federal court with theft of a trade secret in connection with his prior employment at System Management Arts Incorporated ("SMARTS"), a software company based in White Plains, New York.

According to the Complaint, KISSANE worked as a release engineer at SMARTS, and was responsible for the packaging of multiple components of the SMARTS software package, including its source code. "Source code" is the underlying computer program that is used to create a software package that can be sold to customers. If a competitor obtained the source code for a software program, it could convert some or all of its features into a its own software.

As stated in the Complaint, SMARTS developed and sells a custom software program called "InCharge", which monitors large computer networks, and identifies operational problems on the network. SMARTS sells "InCharge" to large telecommunications companies around the country and abroad. "InCharge" is a proprietary computer program, and its source code is a guarded secret. According to the Complaint, on February 21, 2000, KISSANE signed an employment contract in which he agreed to "forever keep secret" confidential SMARTS information that he had access to, including "software codes."

The Complaint charges that on November 28, 2001, KISSANE's employment at SMARTS was terminated. Several weeks later, two of SMARTS' competitors received email messages from a "Joe Friday" at a Yahoo! email account, offering SMARTS' source code for sale. According to the Complaint, one of the email messages stated that the sender possessed the "cvs repository of SMARTS InCharge code, from 11/20/01 as well as custom code for specific bug fixes and customer-requested enhancements." The competitors brought these email messages to the attention of SMARTS.
According to the Complaint, connections to the Yahoo! email account from which the "Joe Friday" email messages were sent was opened at the White Plains Library, White Plains, New York. As the Complaint charged, this Yahoo! account was then accessed approximately thirty-three additional times in December 2001 from a Verizon DHL Internet account located at the Lavallette, New Jersey address where KISSANE had previously informed SMARTS that he would be living.

KISSANE, 41, is a resident of Lavallette, New Jersey.

KISSANE was presented before United Sates Magistrate Judge JAMES C. FRANCIS, IV today, and released on a $100,000 personal bond and strict pretrial supervision.

The charge of theft of a secret trade in the Complaint carries a maximum possible sentence of 10 years in prison and a fine of $250,000 or twice the gross gain or loss resulting from the crime.

Mr. COMEY praised the FBI’s Computer Hacking and Intellectual Property Squad for its outstanding efforts of this case. He thanked SMARTS for its cooperation during the investigation.

Assistant United States Attorney ROBERT R. STRANG is in charge of the prosecution.

The charge in the Complaint is merely an accusation, and the defendant is presumed innocent unless and until proven guilty.

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