On April 4, Brooklyn Law School’s Trade Secrets Institute (TSI) held its inaugural symposium, entitled “Private Data/Public Good: Emerging Issues in Trade Secrets Law.”
New York Attorney General Eric Schneiderman delivered the keynote address, praising the Trade Secrets Institute for providing a forum for the discussion of trade secrets and stressing the importance of balancing public and private interests in general.
Co-founder of the TSI, Professor Claire Kelly, opened the program by thanking David Mitnick ’00 for his tireless efforts on behalf of TSI, the TSI Advisory Board members who have worked closely with the TSI Fellows, and Alexander Kaplan ’00, of Proskauer Rose for his work on the board and for teaching the trade secrets seminar.
The symposium was divided into two sessions. The first panel, “When Our Secrets Are Trade Secrets,” moderated by TSI Fellow Carolyn Wall ’12, focused on the importance of preserving privacy in the context of aggregated personal data and the IMS Health v. Sorell case. Harvey Ashman, who is Senior Vice President, General Counsel and External Affairs at IMS Health, provided a corporate perspective on the issue of ownership and control of information. In Ashman’s view, using real-world anonymized data is critical in identifying global health trends. He noted that IMS’ information is “de-identified” (stripped of characteristics that would link the information to an individual patient) at the source. He emphasized the importance of trade secret protection to databases and analytics to encourage further infrastructure investment by his industry.
David Stampley, a partner at KamberLaw, LLC, took a different viewpoint, advocating the consumer perspective. He noted that the Internet is driven by a profit motive. In some instances, information collected without a consumer’s knowledge can negatively affect the consumer’s interests, for example, by causing a rise in insurance rates. Consumers, he argued, should have a “robust” opt-out option for any data collecting regime where that information is later turned into profit, but currently, the complexity of the online data collection regime is difficult to understand. Stampley further noted that it seems somewhat unfair for individuals to not have a right to control their contributed data while the data compilers get trade secret protection, particularly where the information was obtained through deception.
Both Professor Jane Yakowitz and Berin Szoka, President of Tech Freedom, stated their support for IMS Health.
In the second panel, “Regulating Secrets: Hydraulic Fracturing, Deepwater Drilling, and Environmental and Economic Health,” moderated by TSI Fellows Sean Comerford ’12 and Lillian Tan ’12, panelists addressed the tension between energy companies’ trade secrets and public health and disclosure concerns.
Professor Gregg Macey opened the discussion by providing a birds-eye view of the general development of environmental law and its increased importance in recent years, highlighting the need for increased disclosure of potentially harmful chemical compounds and the resulting tension with trade secrets. Macey noted the lack of affirmative duties to collect information on manufacturers in many chemical regulation statutes. Moreover, trade secret exceptions undermine health knowledge, including Material Data Safety Sheets, which are supposed to inform the public of the nature of chemical compounds. Trade secrets persist even in the face of reform attempts in other areas, and a dynamic of “overclaiming” exists because regulatory agencies are short-staffed and can’t verify every trade secrets claim for correctness. This ensures that knowledge gaps between agencies and corporations persist and prevent effective regulation.
Deborah Goldberg, Managing Attorney at Earthjustice discussed the use of dispersants in oil spills, some of which contain known animal carcinogens. She also noted that while documents known as Substantial Risk Reports are required for many chemicals, redaction is common and over claiming of trade secrets leads to these reports sometimes being meaningless. Likewise, Elisabeth Radow, Chairwoman of the Hydraulic Fracturing Committee of the League of Women Voters of New York State, discussed the overall negative environmental impact of fracking and the “ripple effects” of allowing trade secrets exceptions in chemical reports.
View video of the Symposium.