Tailoring a Public Policy Exception to Trade Secret Protection

64 Pages Posted: 5 Nov 2015 Last revised: 6 Apr 2017

Peter S. Menell

University of California, Berkeley - School of Law

Date Written: February 1, 2017

Abstract

The growing importance of information resources as well as mounting threats to proprietary information in the digital age propelled federalization of trade secret protection onto the national legislative agenda during the past year. This salience provided a propitious opportunity to address a critical overlooked failing of trade secret protection: the lack of a clear public policy exception to foster reporting of illegal activity. The same routine non-disclosure agreements that are essential to safeguarding trade secrets can be and are used to chill those in the best position to reveal illegal activity. Drawing on classic law enforcement scholarship as well as established institutions for protecting proprietary information, this article proposes a sealed disclosure/trusted intermediary exception to trade secret protection. This approach safeguards trade secrets while promoting effective law enforcement. The article also recommends that non-disclosure agreements prominently include notice of the law reporting safe harbor to ensure that those with knowledge of illegal conduct are aware of this important public policy limitation on non-disclosure agreements and exercise due care with trade secrets in reporting illegal activity. Based on an earlier draft of this Article, Congress adopted a whistleblower immunity provision as part of the Defend Trade Secrets Act of 2016.

Keywords: Trade Secret, Law Enforcement, False Claims Act, Qui Tam, Intellectual Property, Dodd-Frank, Sarbanes-Oxley

Suggested Citation

Menell, Peter S., Tailoring a Public Policy Exception to Trade Secret Protection (February 1, 2017). 105 California Law Review 1 (2017); UC Berkeley Public Law Research Paper No. 2686565. Available at SSRN: https://ssrn.com/abstract=2686565 or http://dx.doi.org/10.2139/ssrn.2686565

Peter S. Menell (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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