41 Pages Posted: 3 Feb 2008
Did you ever stop to wonder why "secret" business information enjoys greater protection in the United States than "private" personal information? Those who are content with the current state of information privacy might answer that it is because we place a higher value on business information than personal information. Others might point to the difficulty our legal system has had in recognizing claims for non-economic harms. This article presents a third explanation: what distinguishes modern trade secret law from the current state of information privacy law is the procedural and substantive ways in which each area of law developed.
From a substantive perspective, the inadequate state of privacy law is the result of a number of factors, including the misapplication of the expectation of privacy doctrine, the abandonment of a focus on relationships, and a narrow vision of actionable wrongdoing. In direct contrast, the effectiveness of modern trade secret law is due to the development of the relative secrecy doctrine, a balanced focus on relationships, and a definition of misappropriation that includes the acquisition, disclosure and use of trade secret information. If privacy law follows the path of trade secret law, we need not wait for the common law to provide better protection for personal information. Because privacy law has developed to a point where its strengths and weaknesses can be identified, lawmakers can adopt a uniform law or federal statute to resolve all lingering debate. In the same way that trade secrets rights are not lost if they are subject to reasonable efforts to protect their secrecy, an individual's privacy interests in personal information should not be lost if the disclosure of such information is similarly circumscribed. The context in which personal information is disclosed should matter and, thus, the test for the protection of personal information should not be absolute privacy but "relative privacy."
Keywords: trade secrets, information privacy, intellectual property, uniform laws, privacy torts, William Prosser
Suggested Citation: Suggested Citation
Sandeen, Sharon K., Relative Privacy: What Privacy Advocates Can Learn from Trade Secret Law. Michigan State Law Review, Vol. 6. 2006. Available at SSRN: https://ssrn.com/abstract=1087145