In a presentation at Innovate/Activate: An Unconference on Intellectual Property and Activism, held September 24 and 25 at New York Law School, Elon Law professor David Levine discussed trade secrecy laws and their impacts on transparency and accountability in matters of public interest.
The conference, organized by the Institute for Information Law & Policy at New York Law School and the Yale Law School Information Society Project, was designed to “eschew the formalism of a traditional conference in favor of a more open environment that will promote collaboration and networking,” according to the event’s website. Levine’s Hearsay Culture radio show was a sponsor of the event.
In his presentation, Levine highlighted several issues of interest to the public that are impacted by trade secrecy law.
“This is an area that runs from very serious issues like the operating of voting machines and the chemical composition of Corexit 5000, the dispersant that has been distributed in the Gulf for purposes of ostensibly cleaning up the spill, to issues like how much the Ohio State Union Activities Board paid Kings of Leon to appear at the school,” Levine said.
In each instance above, state courts and/or the entity itself, citing trade secrecy law, denied requests for information by public interest groups, journalists, and others.
“Trade secrecy by virtue of its name ultimately encourages secrecy in ways that do not fit well in terms of our traditional notions of transparency and accountability in democracies,” Levine said.
Levine reviewed several other examples where trade secrecy has obstructed public access to information from government entities, offering the following five categories of activity where he said one could argue trade secrecy does not belong:
- Public/Private partnerships
- Government operations
- Public infrastructure projects
- Criminal prosecutions
- Public health and safety
Levine argued that trade secrecy was not designed to deal with the competing public and private interests that arise in these areas.
He referenced several possible solutions in the conclusion of his presentation, including the application of patent law, rather than trade secrecy law, in cases that fall within the categories above, and, states moving to define themselves, as the federal government does in the Freedom of Information Act, as “not a person” and therefore not qualified for the exemptions allowed under freedom of information laws for trade secrets.
Until such changes are made, Levine said the public’s access to government information of interest to them will be limited.
“Under state law, governments can create information on the public dime, not information provided by a private entity, and label it a trade secret, and state laws generally say swell,” Levine said.
Click here to watch the taped proceedings of Innovate/Activate. Levine’s presentation begins in minute 02:47:30 of the video.