This episode is the trade secrecy panel from DreyFEST, the celebration of Professor Rochelle Dreyfuss. It was recorded on March 24, 2023.
Katherine J. Strandburg (Moderator), New York University School of Law and Engelberg Center on Innovation, Law, and Policy
David Levine, Elon University School of Law
Orly Lobel, University of San Diego School of Law
Christopher Morten, Columbia Law School
Sharon K. Sandeen, Mitchell Hamline School of Law
Announcer 0:01
Welcome to Engelberg Center Live!, a collection of audio from events held by the Engelberg Center on Innovation Law and Policy at NYU Law. This episode is the trade secrecy panel from DreyFEST, the celebration of Professor Rochelle Dreyfuss. It was recorded on March 24 2023.
Katherine Strandburg 0:22
All right, well, well, while while we're all getting settled here, and I'm going to say that this panel is going to be more like a regular conference panel, we have people who have slides, we're going to have like, awesome, and the people who have slides are going to stand up over there while they speak, because otherwise, they will not be able to see their slides, which will be very challenging for them. So that's why people are gonna get up. But I wanted to take the opportunity that everybody has had so far to say just a few words, before we get started on our panel, about about Rochelle. And I could go on and on. But I will try not to do that. So I sort of divided this into three things. So one is something you've heard a lot about already, which is Rachele is just amazing contributions to the field. And I won't go on and on about that. I just want to say a couple of things that just stand out to me about that. So one is that when we were starting to put together this program, we were thinking like who to bring, and I think for most of us, if you thought, Okay, who are the people that this person has like directly affected and bah, bah, bah. And then who are like the best people in the field overlap, we all like to hope there's an overlap. But it wouldn't be like a complete overlap. But with Russia, there's a complete overlap. So we couldn't invite everybody, all of the best people in the field. But it was really easy to find, like good people to fill all the slots, who also were people that Michelle had taught, mentored, etc, because it's kind of all of us. That's the first thing. The second thing is I've been in a lot of conferences where Rochelle was a commentator. And I just want to say, and this has come up a little before, but Michelle is far and away the best commentator I have ever had the you know, and I'm sorry to the rest of you. But she just so if you ever have a chance to have her as a commentator for your paper, take it you will, you will be happy. The second the third thing, which is perhaps related is that I've had a lot of opportunities to talk to more junior people who are coming into the field and they you know, like, they always ask you this question like, What should I read? So I have an easy answer to that question. The first thing you should do is read whatever Russia has written on the topic. That's the starting point. And I literally do always say that, in fact, I just sent it about a week or so ago to one of our ili fellows. So I don't think there are that many people you could say that about, although there are a few other of those kinds of people in the room right now, though, so that's about the field about me personally, I just can't say enough about the mentorship that I've had from Rochelle. The friendship, I literally would not be here without her. And she's just been an amazing friend and mentor for all the years since I've known her, which has been quite a while. Also, and something that other people haven't mentioned as much I wanted to mention that Rochelle, as a friend and as a colleague is just incredibly hospitable. And I would bet that many of the people in this room have been to her home, she is just amazingly hospitable about inviting people to her home, including students, visiting colleagues, etc. And I just think that that's amazing. And to add on top of everything else that she does to like, invite people to her home. It's incredible, and really appreciate it. And I was going to but I don't know if he's here anymore. Give a shout out to Robert. Did he leave, Robert? Anyway, I was gonna give a shout out to her husband, Robert, who's also like, amazingly hospitable and wonderful was here was sitting like right there until before. Okay, so this panel is about trade secrecy. So we're gonna talk a little bit about how we how we get to having this panel. trade secrecy now is extremely important. And in fact, the law of trade secrecy is really old. It's become more and more and more important. I think in recent years. I am writing a lot about things that really aren't IP recently, like privacy algorithms, all that stuff. I'm always thinking about trade secrecy when I write it. But the scholarship and IP in trade secrecy as an IP matter is relatively new in the sense that there haven't been that many people who've been writing about I did it for very long. So Michelle and I co edited. And this was of course, were shells idea. I was new at the law school, Rochelle came and asked me well, how would you like to co edit a book with me about law in theory of trade secrecy? And of course, I said, Yes. And when we sat down and tried to think like, Okay, who should contribute to this book, who should we have come to the conference, there was very little scholarship, it was not hard to figure out who we should have come and contribute. And in fact, some of the people that we invited to come, had not been writing about trade secrecy. And we just said, We think you should read about trade secrecy and come to this conference and contribute to this book. So that was the story. That book was published in 2012. So this was on an hour 29 2009 2010, something like that. And some of the people on this panel are people who wrote contributed chapters to that book, others and people on the panel are people who are the more recent contributors to that field. But I think that is, to me one thing that makes this panel very exciting, and maybe we'll do another book we're thinking, anyway, all right. So that's all I wanted to say, now, let me go on to the panel. We're not going exactly in the order that people are sitting. So I will, I will tell you what order we're going, we're gonna start with, and it's a sensible, rational order that we did on purpose. We're going to start with Sharon, Sandy. Okay, thank you.
Sharon K. Sandeen 6:39
Okay, very honored to be here. And actually 22 years ago, this month, I think, is when I learned from UC Berkeley that I was being admitted into the LLM program. And, and I have, and the fact that I'm standing here today is a lot due to, to what Rochelle did for my career, and for this field, as well as well, spam. Recently, I'm going to divert a little bit, I was giving a was asked to do a PhD, be an opponent for a PhD in Finland. And I didn't even know the person I got emotional. So now, I know the people. Further this field and my Juncker Forgive me for being a little bit emotional. So one thing I will say is that 22 years ago, when I started my own program, and then became a scholar after that, in trade secret area, I did not ever envision we would be sitting here. In fact, as most of the trade secret scholars will contend And Dave is one on one. We had to beg, you know, various IP conferences to have a separate, you know, trade secret room, separate trade secret panel, which of course, has become the norm now. And, and I do you know, I think it's because of Rochelle and Pam's early scholarship, and in what I now call Information Law, and the early workshops that they had and the books I promoted regarding trade secret law. The chapter the book that I wrote, for the book honoring Rochelle is called Information Law pioneer. And I hope I made an argument in that chapter that she very early on saw the importance of see law and IP law mainly, but not just exclusively IP law as a as governing the protection and diffusion of information. And for reasons I'm going to explain now, I think we have to continue to think of it that way. Particularly because of the because of big data, and what's happening with AI and so forth. So here's a couple of early quotes from Rochelle is were to prove that she was an information and is an Information Law pioneer, and I love the first quote from an article she wrote on information products. It is folly to make predictions about the future, especially in writing. Nonetheless, I will venture to suggest that as plastics may have been the growth industry of the 20th century, information products will be that of the 21st century and I think this is It's true. And the irony of this is, we need good information policy in order to solve all the problems that plastics have created. And in another article she wrote, and in our show, you did mention trade secrets in earlier articles. But for reasons that will become obvious, I selected this one when you wrote an article on the Economic Espionage Act, and you said, Something seems to have gone awry in the intellectual property bargain. Here's my understanding of how this bargain is supposed to work. A creator discloses new information in exchange for which the state grants him protection against freeriders for a limited period of time. And that, of course, is the struggle that we face in Information Law more broadly, but trade secret law in particular. And I'm gonna go through a few slides quickly, but just to give you an idea. So I started looking at data on Westlaw, and I'm not an empiricist. But you know, I can get a rough feel. So I started in 1998, until we have 25 years of data. And this shows just the increase in the number of reported trade secret cases, case decisions in Westlaw. And I did this particular slide in five year increments, just so you can see how trade secret litigation has increased over that 25 year period. I also looked at Westlaw for the database for legal newspapers and newsletters, because of course, this database gives you a sense of what the attorneys in practice are thinking about trade secrets, and you can see a huge increase in the interest in trade secret law starting in 2011. Now, this is not a coincidental day, it was about this time that China issued one of its five year plans, and that President Obama for the first time ever mentioned trade secrets in the State of the Union address. And of course, I was watching that carefully and was very excited about that. And this has, and it was also the time when the initiatives to adopt the EU trade secret directive. And the den Defend Trade Secrets Act started. So trade secret interests has grown greatly since 2011. In particular, with respect to scholarship, I'm happy to say that there has been a steady increase in scholarship, and a lot of great new trade secret scholars coming up writing such really interesting stuff. One of the things one of the ways I characterize the field is that we had to build the foundation upon which others could build, you know, so we had to do the deep dive into all the various elements of trade secrecy. We had to have the articles on trade, secret theory and history, and so forth and so on. And now that we've developed that scholarship, we have this wonderful base that will allow us to move forward. And just great stuff is being written that you don't hear about later. I'm sure. I wanted to just comment. So what will the future bring? There's good and bad things that the future will bring both in terms of business practices and demand and trade secret scholarship. There are definitely is going to be increased demands to protect information, including beyond the traditional forms of IP and trade secret. While we're already seeing that. Camilla Hurd is here, she just wrote a great article with Chris Seaman on the use of confidential and non disclosure agreements to protect confidential information, which is important paper will still we will see and we have seen increased property and theft rhetoric. One thing that we're seeing is more actual secrecy efforts, including contractual restrictions, and what I call secret secrets and what I'm working on a paper with Chris Seaman called Secret secrets. And what this is about is once the US Supreme Court decided that opinion and Argus leader, which has concerns a broad interpretation of exemption three of FOIA. There's been a lot of behind the scenes behavior in Congress to have Congress adopt statutes where information is designated as secret in the statute, but it's secret secret because it's not codified. And the only reason I found this is because I'm editing the IP statutory supplement for West. So as I've been reading the statutes every year I found this and it's very Traveling and there's been an increase in it in recent year. On the good side, I think we're going to see more nuanced business practices that may lead to better differentiation of information types, greater embrace of information governance principles, and less information silos. So we're going to the privacy poke folks are going to talk to the trade secret votes are going to talk to the copyright book, this will be good. I think we're also going to see data sharing and exchanges and pools if data is the new oil, which people say, then there's going to be a marketplace for this scholarship will become more nuanced trade, secret scholarship will become more nuanced. I think there will be more discussion of the need for balance and Information Policy, which, you know, we're shy to give another shout out to you about that. Being an important theme of your scholarship.
I think we're going to have concrete proposals for sharing information, including incentives to share. And that's something that Dave Levine and Josh Sharpe Sarna have just written about in connection with the COVID 19 pandemic, more interdisciplinary research and discourse, including among IP and privacy scholars, as I already mentioned, and then a topic I'm very interested in and hasn't been written about much is we need non litigation processes for testing trade secrecy. One of the problems with trade secret policy today is that people businesses will assert trade secret protection in a lot of contexts outside of litigation. But we have no processes for actually determining whether or not those particular claims are, are valid or not. So that's where I think trade secret scholarship is going and I think, Rochelle for getting us started.
Katherine Strandburg 17:01
Thank you very much, Sharon. And next is David, thank you.
David Levine 17:10
I will I'll stand up as well to follow that convention, although I'm going to follow the convention of every other panel and that I have no slides. So I'll stick to that. So it's it's a real honor to be here to celebrate Rochelle's career in the sea folks that I haven't seen in since prior to COVID. Thank you to our photographer slash organizer here for all of the logistics that go into putting together a conference. People have shared their personal tastes, and you'll permit me very quickly. Mine I practiced here in New York for about eight years. Prior to entering academia at a couple of firms, I was a court counsel. I was also a legislative aide in New York State Assembly, I was fortunate to be plucked out of practice, with a Case Western law degree by Larry Lessig and Jennifer Granick, where I had the pleasure to become a fellow at Stanford, and replace a fellow there that some of you may know named Chris Bregman. So I got to there as well. But my entree into the trade secret field is, as Kathy noted, was, was involved with work involving voting machines and access to code. And then the invitation that came from Kathy and Michelle, to be involved in this book project. That was that also allowed me to get to know, my dear friend and colleague, Sharon. And that was a really pivotal moment for me, I'm not stating anything terribly profound, when I note that this field, the academic field is dominated by paper credentials. And where you got your JD, I have had to claw my way into this field from Case Western. And I'm grateful for those who have given me truly the opportunity to have the privilege of doing the kind of work that I'm able to do as an academic. And so I'm grateful to Kathy and Michelle and others in this room for having that opportunity. It speaks volumes to the kind of work and the kind of field that we want to have not just in IP, but also in academia. And more broadly. Let me follow up on Sharon's comments quickly. In the time I have, I want to briefly trace the rise of trade secrecy in the policy and political sphere over the last 15 to 20 years. Sharon notes, particularly in scholarship 20 or so years ago, you didn't see a lot of trade secret scholarship coming out, although of course there was I have jokingly referred to IPS view of trade secrecy as the fourth of three IP regimes after that reason. And we saw the same thing in policy and of course, we had the UTSA we have EA, but we had trips, but it was relatively static and there wasn't a lot happening there. That to me, the explosion of the commercial internet, you know, about 20 odd years ago, and how it expanded information access, move trade secrecy, front and center. As I mentioned, I wrote about voting machine code access when I was in California, and continue to do so that certainly moved trade secrecy to higher ground. But there were also issues with search engine algorithms, breathalyzer machine and other code, which I wrote about in the book that made trade secrecy a front and center issue from an information access perspective. And as Sharon noted FOIA, both at the state and federal level as well as outside the United States where we have developed trade secret law, right has been a major impediment for some good reasons, to public access to trade secrets. And so FOIA has really played that role. At the same time, of course, cybersecurity, national security concerns around trade secrecy started become more prominent during this time. And the battle was joined from as a political matter where you had the interests of competition and IP policy on one side, and it hadn't, you know, loosely accountability, knowledgeable policy policymaking public interest in information that was otherwise viewed more or less as commercial on the other. But still, trade secrecy didn't have a lot of organized interest operating around it. And I think a lot of that changed about 10 years ago. So for for several reasons. First, we saw hydraulic fracturing, and the trade secrets around hydraulic fracturing have become front page news and in recent senators, right have had to deal with their flip flop positions, as some have called them with regard to whether fracking is a good idea. But the environmental health and safety concerns associated with hydraulic fracturing were all tied and still are tied, mostly to trade secrets, right, the chemical composition of what goes in the ground. Secondly, we had to transphobic Partnership Agreement, the TTIP and other agreements that had more broadly dealt with technology, but also had important implications for trade secret law. Of course, the patent panel, and most people most robot know, right, the Alice court VCLS decision from about 2014 also caused interest in patentees. Right looking at trade secrecy as a viable option in light of the perceived lack of certainty with regard to how one protects abstract ideas in patenting. But perhaps most significantly, right, the real and imagined beliefs regarding trade secrecy being inadequate to confront the new informational challenges and innovation challenges associated with the Internet. Right brought forth the Defend Trade Secrets Act as a very serious right and obviously became law proposition. And to some extent, the EU trade secrets directly to which Sharon referred also played that role. It was at that point, that you could say that trade secret law started reasonably jockeying with copyright law in the world of power politics, and organized interest dealing with these issues. And I knew that trade secrecy had really hit that point. And I'll tell you a very quick story when a Senate Judiciary staffer invited me up to Washington from North Carolina, to brief the Senate Judiciary staff on these issues. Now, Sharon and I and others, led the opposition to the DTSA for a variety of reasons. I was suspicious of the invitation from the senatorial staffer, I suspected that the senator wasn't terribly concerned in the DTSA, but was more using this for jockeying and horse trading positions with regard to other legislation that turned out to be true. But when I showed up, I was told very candidly by this staffer, remember, you're not a lobbyist, you're an academic, and therefore, your opinion here does not matter. That's almost verbatim, about having been a legislative aide, been around this stuff I expected nothing less. But I also knew at that point, that that's when trade so your law had really made it, at least in my lifetime to something that would rise to the level of being ignored when it comes to academics. Right. And the the International Panel refer to this as some degree as well. Awareness of trade secret issues, however, more seriously right followed at that point, and the cyber espionage issues, the which are real, right, of course, national security concerns, which are also real, and we continue to dominate this area, have really brought to the fore since the DTSA, these fundamental issues, things were going along in that direction until of course COVID. And as was already alluded to by Sharon, in my case, the last three years have been spent working with Josh and others to assess how we can compel trade secret sharing in the interest of building up capacity to have affordable and accessible vaccines, treatments and diagnostics, not for countries that are blessed with abundance, but countries that lack that kind of development. And as Peter noted this morning, the WTO has been considering a waiver mostly on patents and trade secrets plays a minor role. But again, trade secrets are front and center at the debate of whether we're going to actually have that scaling up. Much more recently, last year, we have the new protecting American IP Act of 2022, which despite its broad name is focused exclusively on trade secret law, allowing the president to sanction foreign entities and engage in trade secret misappropriation. And then lastly, it would be a mistake to not point out what the entire world is now facing because of open AI with regard to the foisting of generative AI on society with little public debate or discussion, which is also of course, right involving trade secrets. While that code has already, by the way, been more or less reverse engineered by others, it remains a question as to what trade secrets exist within this code. And more importantly, more broadly, right, whether trade secrets will actually be strengthened by virtue of this AI as it comes out, or whether it's trade secrets, and I say this seriously, although hyperbolically could be rendered obsolete. Right, as we have other ways to quickly innovate in spaces that previously didn't exist. At the end of it all the last 15 or 20 years, has seen trade secret law go from a relatively static area, again, with with all proper respect to landmark articles written prior to it to a dynamic lever in the innovation space, in the Information Law space, and in how the world views access information. That was mentioned as as mentioned at the outside of the events, therefore, Michelle, you still have a lot of work to do and to guide us on as we grapple with these challenging issues. Thank you for the privilege of being here.
Katherine Strandburg 26:48
Thank you very much, David, and our next speaker will be Orly Lobel.
Orly Lobel 27:04
Thank you, well, I was so excited to be invited to this. And when I was told that there is an amazing event celebrating the amazing Rochelle Dreyfuss, that's called DreyFEST. I of course, thought it was a music festival or we're all bringing soundtracks that remind us of Rochelle and her scholarship, so I did prepare a soundtrack.
Unknown Speaker 27:42
Okay, that was
Orly Lobel 27:43
psychic spies from China try to steal our minds relation. And that was what we were writing about when we wrote economic espionage as reality or rhetoric. That was, to date, the only co authored piece with Rochelle that I had the privilege to do, and I got so much from it from the way that she approaches a question. And I think that we were a little bit ahead of our time, and how we were looking at what is happening with, you know, thinking about the Chinese stealing our minds, elation, and, you know, everything that was happening, really, in the background of, you know, what we see somewhat in litigation is kind of the tip of the iceberg, as Sharon said, of how trade secrets are used as a weapon in international relations and trade agreements in border control and immigration, and competitions among countries and also among demographics and communities. And certainly, we saw a huge uptick in xenophobia that we talked about in the paper, specifically against people from Chinese descent. So we were concerned already then about Asian Americans, naturalized Americans who were disproportionately being prosecuted for, you know, maybe a whiff of stealing trade secrets. And what I want to say about this paper so a lot of people talked about, you know, how Rochelle was a pioneer in the lawn sciences, innovation policy and the hard sciences technology and chemistry and biology but I also see her scholarship as really these massive contributions to law in social sciences and in this paper i What, what was really important and kind of my learning process was how Russia would just like, first of all your fun. And we did talk about this was actually like a soundtrack, we talked about Red Hot Chili Peppers. But we also we ventured to, we were in Oregon together, and we looked at this, like Hollywood production that was actually made by the FBI using actors that they hired and everything to really be what we call that thing, propaganda to convey to companies, how dangerous it is, is to let their employees talk to others and go other places, and, and the kind of depictions of the foreigners coming in and trying to take trade secrets, and Russia had just these amazing insights. So add, you know, to the interdisciplinary movie critic, you know, film studies. And also, just the kind of materials that we looked at, were really not just sifting through case law, Rochelle had this organizational history that is so important, aware, or, you know, oral history where you had worked with prosecutors and legislators in the Economic Espionage passes, where there was like these promises that didn't go into the kind of law on the books, but ideas about what will actually be prosecuted. And then we saw, you know, these changes that happen over time there. And then we went through congressional reports. So there's started yelling, you know, FBI reports. And, again, kind of see what was happening in the kind of launch society space, not just when you look at what ends up in litigation. For I think this is super important, specifically in the field of trade secrets, because the other really important piece of this, or their most important piece of, you know, Rochelle is contribution to trade secrecy as a field was that versatility, so not just interdisciplinary, but it's disciplinary tea, but within the single field, understanding it from like, all the different perspectives, I, sometimes I, you know, like my yoga teachers talk about standing on your head to see things differently. And you know, I do it in my office sometimes, like, just what I'm seeing the same thing, but really kind of bringing a different perspective and with trade secrets, what Russia I think, gave us the liberty to do and for me, it was particularly important because I think trade secrets was my entry into intellectual property where I came from employment and labor law really, was to think about a single field that maybe was considered it was always kind of a stepchild of intellectual property and the under researched, you know, pillar of intellectual property, but it was taught as intellectual property. But suddenly, we couldn't understand it as its, it has all these split identities. So it's, it's a tort. Its its its property law, its contract law. And the expansion of NDA is which we got a lot into in the past decade, I think. It is very much a field of employment. Why, you know, that's the vast majority of trade secrecy litigation happens in the context of employees or former employees and their employers 75% or 90 to 90%, as documented of the cases. It's a field of competition, law and antitrust. And it's the field of criminal law. So kind of that ability to look at, you know, a single issue from all of these perspectives, I think, is really the future of the field. And, as always, Rochelle is ahead of her time, but there's a lot of work of work to do on that. What is exciting and what is promising and I guess I'll close with this is that I think that what we used to say think of as kind of under the radar, these expansions through contract of intellectual property and this goes beyond trade secrecy, this is kind of the argument of subverting the deal in general about what flows what kind of knowledge flows, what are what is in the public domain and what is not. When we look at intellectual property in general and kind of forget the the contractual arrangements and forget the employment doctrines and you know, all the warning letters and all that. I think that some of us used to feel like we're at it alone, in in arguing that that's what's happening and this is the exciting news is that That's it is very much on the radar. So this is why again, we need more more work on this now. But in January 2023, the Federal Trade Commission announced a new rule right now we're in the notice and comment. Time yesterday, literally and I submitted a comment and we're working on more so if you're interested, but the rulemaking is very happily and kind of surprising that they they actually listen is a complete ban on non compete. So it's not the low wage workers. It's not the partial ban. It is a complete ban, but it's actually more than a complete ban is complete ban plus. And the plus is the trade secrets aspect. So that the rule itself, which I have that piece of it here is de facto non competes are also non competes. They say that in the rulemaking when the rule itself, which is you know, even in California, we had to flesh it out in a lot of case law over you know, decades and decades. And they have two kinds of de facto defined de facto there's they couldn't be more but define de facto, non compete, one of which is the trade secrets. So the first of which is the trade secrets. And they say a nondisclosure agreement can be overly broad and really proprietary information, everything that's called confidential, everything that's deep, or, you know, argued to be a trade secrets which which is has been really expanding. If you look at litigation, the customer lists the salary information, which is that rageous and, and really unlawful to begin with, to call it trade secrets. But all of these mechanisms that are really not about innovation policy, but they are about competition, and they are about suppressing wages, and they're about about foreigners and all of that. So I think I was to stop way it's there and say thank you again, Michelle, for allowing us all to think about this and keep keep at it. Thanks.
Katherine Strandburg 37:09
Thank you orally. And last but not least, on this panel is our former student, Rochelle and I both hug Chris as a student, Chris, Chris Martin, who is now up at that other school. That's somewhere else in New York, north of here. But we forgive him. And we're always excited to have him come back.
Christopher Morten 37:35
Yeah. Thank you, Kathy. And thanks, everyone. It really is incredibly incredibly exciting to be here. As Kathy said, I'm Chris Morgan. I'm an associate clinical professor of law at Columbia. Graduate of this esteemed institution, I direct a clinic up there called the Science, Health and Information clinics. I'm primarily a clinical clinical professor. I'm wearing my scholarly hat today. As a junior scholar, I just want to say a couple things. One, it's such an incredible honor to be at this event in this room, with so many folks that I have learned so much from and continue to learn from you I think as Sharon said, like I've been fortunate to start my career on a on an incredible foundation that others built. I have some slides today, and they are great. I'm going to jump ahead and speaking of the incredible foundation, to just say a quick word about Michelle, I think some of the other speakers today are like like me, people who were students of Rochelle. I am a 2015 graduate of this institution. And so I benefited from her shell as a teacher, as a mentor. as just an incredible scholar and supporter in my career as an editor and commenters as someone mentioned, one of the best I've ever experienced. And I actually went back to my patent law notes from two l fall and discovered that the first thing I ever learned about trade secrecy I learned from Michelle Dreyfus, about 10 years ago, on the first day of patent law, she describes sort of the theory of patents and the theory of trade secrecy and how they intersect and diverge. So Rochelle, I am forever forever in your debt. Thank you so much. And thank you so much for inviting me here today. And congratulations. Okay, so I'm gonna talk a little bit about some of my recent work. It's kind of a series of papers that I've been working on under the aegis I guess of this phrase publicizing trade secrets. It's kind of this work is animated by the question you see on the center of the screen. Could regulatory agencies share trade secret information with the public, while protecting the informations integrity and value as a trade secret? And a couple of quick anecdotes that maybe will illuminate. Why again, interesting this question, I think, I think David's remarks actually gave us a great entry point. So So David is one of the leaders in this space, having studied voting machines and fracking, other information that companies claim trade secret protection. But that is simultaneously of great interest to scientists and civil society groups, journalists, and so on people who want to do research expose safety problems, or labor violations, environmental violations, and so on. A couple more examples on screen. There is a story from a few years ago of researchers trying to get safety data on medical devices out of the FDA. And the FDA says we cannot disclose this information because the manufacturers claim trade secret rights in it. Similarly, Tesla and its self driving car software autopilot has been in the news a lot. It's supposedly responsible for hundreds of crashes. And NHTSA, the National Highway Traffic Safety Administration has data on these crashes, including some code as I understand it, and researchers want access to this to understand how the crashes occurred how this technology works. Tesla claims, a trade secret Santas Tesla says and the medical device manufacturers say and the companies that do fracking and so on, they all say if you share our data with researchers, there's a risk that competitors will get it they'll freeride our incentives to innovate will be shattered. You can't do this. Regulators I think are kind of caught in a bind there. I think legitimate interests, kind of on either side, researchers want to make socially useful uses of this data. But industry can claim, at least claim a trade secrecy, interest and interest in protecting their their r&d. So I think there's a kind of formulation we often hear where this is a tricky trade off. And we have to find kind of the perfect midpoint the balancing point between access and secrecy. What I've been preoccupied with is think about whether we can have our cake and eat it too. Hence the carrot cake, whether there's a way that we might provide access to researchers, while simultaneously protecting the competitive value of the information, protecting the information from use by competitors. I focused on regulatory agencies, I kind of aligned at this point. But I'm really interested in regulatory agencies and an admin law for a bunch of reasons. But one is that I think they are incredible reservoirs of information about technologies and tech companies, as the companies themselves have very strong incentives to secrecy and the power to keep, you know, their their activity, shielded from journalists and others, regulators, I think, our best, our best hope of getting information. So I started asking, Can regulators legally disclose trade secret information that they hold that they've collected from regulated entities? I think the answer is a doctrinal matter. It's Yes. And I'm glad to talk about that. I hope I defend that premise. And in some of my papers, if that's true, if you agree with me on the law, then we get to a normative question, a kind of public policy question, which is when? Or how should agencies use this power to disclose trade secrets. And my kind of normative claim is that there are indeed contexts where it's appropriate, or it's socially useful for agencies to share trade secrets and other sensitive information to include here kind of confidential commercial information and other kind of competitive information at the borders of trade, secret protection, but also personal private information. And this is a space where I think sharing and others have kind of acknowledged the kind of overlap between trade secrecy law, privacy law kind of Information Law more broadly. And there's lessons to be translated across all these. So I think the key is that we have to move away from unconditional disclosure, we do not want to put this information into the public domain. And what we want is active governance. We can share this information with some trusted research, researchers, you know, subject to restrictions on access, and use and in a lot of my wealth, to have my recent papers, I've started kind of taxonomy rising, describing how regulators in the US and elsewhere are starting to experiment with these governance models where they will, they will permit researchers to access some trade secret or personal private information in limited ways. A few examples, I think are on screen. I have NIH, CMS, and Canada's FDA Health Canada, which has, I think, a really interesting program, where they're beginning to share trade secret information with academic and other researchers. I'm subject to a whole raft of constraints. There's institutional governance, so the stewards of this data the regulators are kind of very active monitors of who's getting to the data, how they're using it. There's legal governance, these regulators impose contractual risk Questions on, on how the data is used. They punish commercial uses. They punish on authorized retransmission. And there's technical governance. So in some cases, the data is not downloadable. You can only query it, you can ever see the whole data set all of these things, all these constraints help protect the integrity of the trade secret prevented from being used by competitors, or in other inappropriate ways. That's just a plug for the papers. And I think that's it actually. So.
Katherine Strandburg 45:36
All right, great. Well, thank you to all of the panelists. And at this point, our panelists were so great about keeping the time. So we have lots of time left for questions, or comments. Kathy, can
Sharon K. Sandeen 45:50
I make a comment?
Katherine Strandburg 45:51
Um, yeah, I was gonna say that. While we're waiting for that will let I will be happy to. And I also have some questions to have. And I'm sure we'll have questions.
Sharon K. Sandeen 45:59
Yeah, for those of you who might have picked it up, because we all use this language, trade secret, scholars have started to talk about sharing of information. And as opposed to disclosure, and this is a very important distinction to keep in mind. Because when you talk, when you hear from policymakers and people in business, they always say I shouldn't be required to disclose my information. In trade secrecy, disclosure equals loss of protection. It doesn't mean what it means in in normal vernacular. So that's a really important distinction that we've started we've all started to use is that we can have a conversation about sharing information that doesn't have to result in the loss of trade secrecy. So please, everyone to us sharing.
Katherine Strandburg 46:56
Thank you, doesn't do any of the rest of the panelists want to make some comments on one another's things? On if otherwise? Do we have questions out in the audience? Yeah, okay.
Unknown Speaker 47:14
It seems like there's a bit of a phenomenon of, I'm gonna use Sharon's next title, secret disclose secrets, happening within IP space where intellectual property owners are trying to take advantage of the IP system, while at the same time keeping secret. So that participating in an IP system with some form of registration should mean a disclosure. So a number of examples. One is the submarine trademarks, where you file in Trinidad and Tobago to get super, super six months. Within domain name law, there's the trademark Clearinghouse that you can keep you can file trademarks in the clearing house. And that is a trade secret, even though you're relying on the fact that it's been registered somewhere else. Or in the design law treaty, it proposes three months of secrecy for an application for design, and that would be mandatory for all states. So I wonder if any of you had thoughts about that.
Katherine Strandburg 48:16
We can add to that issues that we've been dealing with forever in patent law about what do you actually have to disclose in the patent that supposedly discloses but may actually not disclose all that much. So just to add to that, that point or that question?
David Levine 48:33
Yeah, yeah, I'll jump in there. Because I mean, that's a great point. Right. And as Kathy just referred to right, all the gamesmanship around patent drafting, of course, has reflected it. You know, I think I think it's it's definitely the case that that's happening and actually on something that Chris was talking about, with regard to regulators. Right. It's not it, there's the panoply of secrets that exist, right, change, you know, by virtue of who the entities are holding the secrets. And, of course, who the entities are, that are sharing the secrets to use the word that Sharon has encouraged us all to use? I think she's right about, and a lot of that is the same kind of gamesmanship, that one would see in negotiating whether buy a car or not. Alright, so it's not even it's not even as much about the secret disclose secrets, or the disclosed secrets that shouldn't be disclosed. And I'm about to go into the known unknowns and unknown unknowns. I'll stop there, and say that a lot of times what winds up happening is people that add entities that would otherwise you would think wants access to information by virtue of the concerns associated with what happens when it's disclosed. Say actually, I don't want this at all. I mean, I ran into this directly with some of the fracking work that I did, or excuse me, hydraulic fracturing. I'll be respectful to the industry that doesn't like hacking as a moniker where regulators said point blank, you know, But yeah, we'd like to see it. But we're so concerned about the repercussions if we accidentally disclose much less share with researchers that you know what, we'll just go on what the industry says. And I don't mind. I mean, no one. I know that directly. And no one swore me to secrecy. And I'm not an academic to have those kinds of secrets, ironically. So I share it here to say, yeah, there's a lot going on in that space. Right. I mean, I think patent drafting begins it. But a lot of it has to do with the political economy associated with holding information in an environment where it is easily disclosed, intentionally or otherwise. Yeah.
Unknown Speaker 50:44
So there's been a lot of talk lately about algorithmic accountability. And how do you achieve algorithmic accountability in a way that doesn't, again, disclose trade secrets? And I think the idea of a new line of professionals being kind of auditors for that purpose is important. And sometimes the analogy is drawn to accounting principles, right, that there are kind of standard accounting principles. And maybe there could be something like that. But of course, it's hard to do when it's basically not really a profession yet, and there's no standards. So I would think that some of the folks in the trade secrecy space would have some ideas about how do we solve that particular problem. Who wants to take on that?
Sharon K. Sandeen 51:47
Well, you know, Tonya oblong, and I wrote a paper where we on where we did a case study of credit scoring and autonomous vehicles and showed that a lot of the information that is driving AI is not a trade secret. And we just need to admit that upfront. And then once we admit that upfront and identify what can be, then I think it will be easier to develop policies about the sharing of that information or the auditing of that information, and so forth. So the example I like to give and I know, you know, this, Pam, but how many years have you seen Wei mo driving around San Francisco, right? In every photo that Wei Mo is taking of the streets of San Francisco, in my opinion, it's not a trade secret, because they're taking pictures of the street of San Francisco, you know, the streets of San Francisco. And so one, one of the things in addition to what you mentioned, I hope that we will see in the future with respect to AI is more more in incentivizing, sharing in order to encourage companies to work together to verify the information, make it more accurate, and particularly if it's public ly information collected from public sources, I think there's some leverage rehab to require that.
Katherine Strandburg 53:08
So maybe I'll take a moderators privilege, and we're going to speak early, go ahead, do speak first,
Orly Lobel 53:14
I was gonna add to what Sharon said, you know, I think that we need to be careful and separating when we're talking about algorithms, between the inputs, the formula itself, which is constantly changing, there's no like an algorithm, it's like, tomorrow, it's going to be different. And then the outputs. And I think what I hear Sharon saying, you know, so much of the inputs are not trade secrets. Also, the outputs should not be trade secrets, in terms of like, safety on the road, and, and or the hiring, you know, diversity and you know, all the, so those we can kind of, we need to have much better language, in addition to what you're saying, expertise to actually do those kinds of auditing on the front end, and you know, that the, what is happening, and then I do think that there is a legitimate space of, you know, some things keep me meaning secret, but we really need to kind of define what is that secret sauce. And on top of that, I really think that what we're seeing now is that so much of it is, can be reversed engineered, and, and really should be, at some point, we need, you know, better language about how our technological our new digital technological capabilities are a public good. So really, the machine learning, you know, in all sorts of spaces are many contexts. We should have public options for them to build on them.
David Levine 54:50
You got family, of course. I mean, it's a great question. And your work is foundational in this space. Of course. You know, Brett Brett Frischmann, you know, has written about public infrastructure for 15 years now. And that's kind of a framework that might be helpful here along the lines of what Orly just said, you know, but I'll also add, you know, we have it we have these analogs, right. In other bodies of law, I mean, privacy comes to mind, it's already been mentioned, right, the GDPR. Right has in it, what a right of explanation that Margo Kaminski has written about, where the where the notion is that we explain what we're doing. And in that way, the public has a better understanding. Without getting, you know, to, again, I'll use the word again, hyperbolic or dramatic about it. I don't know at this point with regard to algorithms, given the exponential increase in their power just over the last four months, whether we have the luxury of explanation at this point, it would seem to me that was a luxury that that disappeared on November 30. And so the question really becomes, as you allude to, right, is how do we make these algorithms accountable? Right, but But of course, the question is accountable to whom? Right, they are accountable to other algorithms. They're accountable to other computers. But of course, we want accountability to humanity. Right, I believe I think we do. And so that that one I, that's what I'm writing about. Now, of course, I have no answers. And but I do think the role of trade secrecy, again, to the extent that we still have them, right, in other words, if generative AI can spit out the kinds of innovations that would otherwise take time and secrecy to develop, we have a whole separate question. And this panel may be the last of those panels, right? Because we don't have any more I'm not predicting that yet. But as possible. So thinking about what AI does, right? That understanding that we often lack, I think, to earliest point, makes it hard to figure out the regulation, I think ultimately, what we need to be thinking about is what that accountability looks like, involving a technology that most of us, including people, the internet wellfield, really weren't aware was this advanced four months ago.
Katherine Strandburg 56:54
So I just wanted to mention a couple of things that are somewhat responsive to Pam's comment, but also just to discussion in the panel. So one is that it's really interesting to me as someone who does it, but also does a lot of stuff on privacy, the way that you guys are talking about the sharing disclosure, and so on, because I think that there is a possible place for nice theoretical overlap, or whatever. Because, to me, the most useful theoretical intervention with respect to privacy in the past, you know, while was Helen Nissenbaum, has contextual integrity theory, which is all about saying, privacy is not about keeping things to yourself. It's not the same as secrecy. It's about appropriate flows of information, for the context under appropriate kinds of transmission principles, which include things like contact confidentiality recipe, I mean, you can have any number of them. This sounds so much like what you guys are just talking about. So I just was kind of excited to hear that and think that there's probably a lot. And partly, I think that's exciting because Allah, there is a kind of overlap, a bad overlap, I think, between privacy and trade secrecy, in that, sometimes companies that just really want to keep things secret that perhaps should not be kept secret, use privacy as an excuse for that. So trying to work on that interface. And maybe the theory could could come together. So that was one thing I wanted to say. But the other one was really more of a question, which was that I forget which one of you mentioned, but someone mentioned this question about is probably Sharon about subject matter, because it seems like, much as we may like argue about and be annoyed about the doctrines of subject matter in patent law and trade secrecy, we seem to have this problem of like, there's nothing that constrains subject matter, even though there should be in the doctrine. So I just wanted to hear about that.
Sharon K. Sandeen 59:02
There is a lot that constrains trade secret, the problem is, is that there's a disconnect between business and policymakers understanding of what a trade secret is, and what trade secrets actually are. So that's a big problem. And, and, and, and, and for those of you from Europe, all of the digital trade initiatives that are being adopted and negotiated now have big holes in them, because they are exempting trade secrets and confidential information like so anybody can step forward and say, I don't have to comply with this because it's trade secret and confidential information. And that and there's no mechanisms built in for testing that it's a really big problem.
Christopher Morten 59:46
And can I just plug real quick I think Camilla is here, although I've lost sight of her but she has an amazing paper. I think it is called the value and secrecy about the economic value requirements and trade secrecy law which functions or should function, like a subject matter kind of eligibility. screen. So
David Levine 1:00:02
I'll just quickly note, I'm really uncomfortable with the amount of reference one of my papers again, and I apologize. But the, you know, opportunistic privacy idea, something I wrote about a few years ago. And it does fly in the face of what we think of as the role of trade secrecy, of course. You know, Edward Shils, 70 years ago talked about secrecy as privacy by compulsion. Right, trying to draw that overlap. The question, of course, is where that line is. And clearly when we're dealing with privacy and privacy involving personal information, which itself renders trade secrets, as others were alluded to, we are in another miasma. So there's my answer. There's no solution and solution as a solution.
Katherine Strandburg 1:00:49
Yeah, I mean, it's interesting, the way that we have this, the way that trade secrecy is going through this very same dichotomous stick thing that privacy was going through, I would say a while it still is going through but you know, either it's a trade secret, or you have to exempt it because it's a trade secret. And if you if it's if you don't exempt it, then it's going to be out there. So there's like only two states, you know, like, and that's like the history of privacy theory too. So anyway, sorry. I'm just like getting so excited about other comments and questions. Okay, sorry. Okay, our time is up. Thank you so much and thanks for
Announcer 1:01:31
The Engelberg Center Live! podcast is a production of the Engelberg Center on Innovation Law and Policy at NYU Law and is released under a Creative Commons Attribution 4.0 International license. Our theme music is by Jessica Batke and is licensed under a Creative Commons Attribution 4.0 International license