From Trade Secrecy to Seclusion

Abstract

By all accounts, trade secret law is now recognized as one of the major categories of intellectual property law. Less recognized, however, is the degree to which private actors are pushing the law past its traditional, market-competitive boundaries towards an all-purpose seclusion doctrine. We argue that trade secret law today is increasingly functioning not merely as a tool to protect intellectual property against misappropriation, but often as a tool for open-ended concealment. The law is moving from trade secrecy to trade seclusion. This shift raises serious concerns, ultimately distorting the flow of information that should be available to the public.

Confronting these disparate claims of trade secrecy or confidentiality – which can crop up in civil litigation, criminal law, open records disputes, and elsewhere requires, first of all, a common vocabulary. In this article, we collect and identity a variety of nontraditional cases to demonstrate the alarming extension of trade secrecy arguments in a host of different areas of law. We classify these scattered claims into three categories: investigatory concerns involving journalists and whistleblowers; delegative concerns where the government relies on private technologies, such as automated decision-making and artificial intelligence; and dignitary concerns where employers seek control over employee attributes, like diversity data and workplace harms, beyond the normal context of employer/employee trade secret lawsuits.

In our final section, we present a range of solutions. Some suggest ways to recuperate trade secret law’s original architecture and thus pay heed to its intrinsic boundaries. As we argue, some nontraditional trade secrecy claims involve information that is not a trade secret at all. And, even where information qualifies as secret (or as confidential, in open-records parlance), we draw upon recent scholarly efforts to define doctrinal limits to trade secrecy and similar claims in both litigation and open records disputes where there is a pressing public interest. Finally, drawing from lessons from #MeToo and other workplace protection statutes, we examine potential legislative enactments in order to achieve an appropriate balance between secrecy and the public interest.

Keywords: Trade Secret Law, Government Use of AI, Nondisclosure Agreements