Trade Secrets and Human Secrets

Abstract

Two separate systems of law govern secrets. The first one concerns trade secrets: confidential business information that provides an enterprise with a competitive edge. The unauthorized use of a trade secret by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. The second system protects human secrets. This system is privacy law. Privacy law deals with the regulation, storing, and use of personal information of individuals. While both systems concern secrets, the laws that govern them comprise entirely different regimes, and have almost nothing in common.

This paper aims to examine the different ways in which the law protects commercial and private secrets. The most fundamental difference is that trade secrets regime forbids the unauthorized use of a company’s confidential information, while privacy law does not forbid the unauthorized use of a person’s confidential information. If a firm takes measures to protect information of value, the law forbids the use of this information. Yet, as to humans’ secrets, the mere fact that someone has taken measures to protect their privacy does not create an obligation to avoid misappropriation of their information.

This asymmetry of protection is especially troubling when these two systems collide. For example, certain information can be subject to a trade secret of a company, while at the same time strongly ‘belong’ to an individual. Trade secret laws often prevent individuals from finding information about uses that firms conduct with their own private information.

This paper explores the extent in which the distinction between the two laws is justified, and analyzes whether privacy law can be modified to resemble trade secrecy more closely. This exploration is particularly relevant under today’s climate of commodification of private information, where both users and companies make transactional use of personal information on a regular basis.

Keywords: Trade Secrets, Privacy, IP, Intellectual Property