From Trade Secrecy to Seclusion

Article Source: Georgetown Law Journal, Vol. 109, Issue 6, pp. 1337-1420, 2021
Publication Date:
Time to Read: 2 minute read
Written By:

 Charles Tait Graves

Charles Tait Graves



Traditionally, trade secret law protected innovations from misappropriation by departing employees. Now, however, trade secret claims are often used to conceal information of public concern.


Policy Relevance:

Courts should reject nontraditional trade secret claims. Legislators should protect public access to certain records.


Key Takeaways:
  • Historically, trade secret cases often involved a firm’s suit to stop a departing employee from working for a competitor.
    • Typical trade secrets described manufacturing processes or chemical formulas.
    • Information was protected only if the information would be economically valuable to a competitor.
  • Increasingly, trade secret claims appear outside of their traditional context; firms and the government use nontraditional trade secret claims to suppress information in cases involving corporate whistleblowing, pollution, criminal prosecutions, the Freedom of Information Act (FOIA), and workplace safety and diversity.
  • Overbroad trade secret protection affects the public interest by raising three types of issues.
    • Investigative concerns (especially in criminal and environmental cases).
    • Delegative concerns (when government delegates a public function to a private entity).
    • Dignitary concerns (cases focused on workplace and employee well-being).
  • Courts have denied criminal defendants access to the source code from software tools used to convict or sentence them, accepting claims that the source code was protected by trade secret law.
  • Use of machine learning algorithms to automate governmental decision-making threatens constitutional rights of due process, blocking decisionmakers from accountability for poor results.
  • Some firms have used trade secrecy claims to block journalists from accessing diversity or injury information submitted to the Department of Labor.
  • Courts should limit trade secrecy claims when the public has an interest in access to information.
    • Courts should reject such claims if a competitor could not use the information in its business.
    • A firm has no standing to bring a trade secrecy claim when the information concerns an injury to its employee, who would be free to disclose that information.
    • A firm should be required to show it took security measures to protect the information.
    • Non-trade secrets cannot be transformed into trade secrets by aggregation.
    • Policymakers could consider recognizing rights of “fair use” for trade secrets.
  • Legislators should pass targeted laws to ensure some types of data are not considered confidential; legislators could also pass open-records statutes, allowing courts to weigh the public’s interest in disclosure against the interests protected by trade secret law.



Sonia Katyal

About Sonia Katyal

Sonia Katyal is the Roger J. Traynor Distinguished Professor of Law, Co-Director of the Berkeley Center for Law & Technology, and Associate Dean of Faculty Development and Research at the University of California, Berkeley School of Law. Professor Katyal’s work focuses on the intersection of technology, intellectual property, and civil rights (including antidiscrimination, privacy, and freedom of speech).