Secrecy and Unaccountability: Trade Secrets in Our Public Infrastructure

Abstract:     
Trade secrecy - the intellectual property doctrine that allows businesses to keep commercially valuable information secret for a potentially unlimited amount of time - is increasingly intruding in the operation of our public infrastructure, like voting machines, the Internet and telecommunications. A growing amount of public infrastructure is being provided by private entities that are holding critical information about their goods and services secret from the public. This Article examines this phenomenon, which is largely unexplored in legal scholarship, and identifies a significant conflict between the values and policies of trade secrecy doctrine and the democratic values of accountability and transparency that have traditionally been present in public infrastructure projects.

This Article argues that in this conflict trade secrecy must give way to traditional notions of transparency and accountability when it comes to the provision of public infrastructure. Although there are good reasons for trade secrecy in private commerce, when applied to public infrastructure, the basic democratic values of transparency and accountability should prevail, especially given that the application of trade secrecy doctrine to public infrastructure projects causes some unanticipated outcomes, like hiding information that could be useful for the public at large and for the improvement of the specific infrastructure project at issue. This Article examines the background and history of trade secrecy and contrasts its values with those of democratic government. It then shows the increasing impact of trade secrecy on public infrastructure through three examples. Finally, the Article suggests some potential remedies to this sphere of increasingly conflicting values.

Keywords: Internet, trade secrets, infrastructure, secrecy, transparency, accountability, intellectual property

JEL Classifications: K10, K11, H41, H54

Accepted Paper Series