From Trade Secrecy to Seclusion

84 Pages Posted: 6 Feb 2021 Last revised: 28 Sep 2021

See all articles by Sonia Katyal

Sonia Katyal

UC Berkeley; University of California, Berkeley - School of Law; University of California, Berkeley - School of Law

Charles Graves

UC Hastings Law

Date Written: January 4, 2021

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

Suggested Citation

Katyal, Sonia and Katyal, Sonia and Katyal, Sonia and Graves, Charles, From Trade Secrecy to Seclusion (January 4, 2021). Georgetown Law Journal, Forthcoming, UC Hastings Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3760123

Sonia Katyal

UC Berkeley ( email )

687 simon hall
Berkeley, CA 94720-7200
United States

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

687 simon hall
Berkeley, CA 94720-7200
United States

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

687 simon hall
Berkeley, CA 94720-7200
United States

Charles Graves (Contact Author)

UC Hastings Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
8
Abstract Views
389
PlumX Metrics