On Monday, the Intercept released a batch of 166 previously unseen documents leaked by whistleblower Edward Snowden. The release fulfilled Snowden’s wishes for the classified information, by pairing it with context that makes it accessible and understandable to the general public. The Intercept also attempted to protect the personal welfare of innocent individuals associated with the information.

On its website, the Intercept declared that it will release the documents in batches, starting with the oldest ones from 2003 and going all the way until the most recent documents, from 2012. The documents in question are from the NSA’s internal newsletter called SIDtoday, short for Signals Intelligence Directorate.

On Tuesday, reports came that the CIA “mistakenly” destroyed a 6,700 page U.S. torture report, containing thousands of confidential files about the CIA’s use of enhanced interrogation. Something that does sound very fishy, and Snowden said:

I worked @CIA. I wrote the Emergency Destruction Plan for Geneva. When CIA destroys something, it's never a mistake. https://t.co/S1VULfE4NY

— Edward Snowden (@Snowden) May 18, 2016

Along with the release of information, the Intercept published four accompanying articles. One went through how closely the NSA was involved in the Guantánamo interrogations, explaining how staff were sent to the military base during the time that the torture-like interrogations took place. It states:

The NSA LNO might pull together intelligence to support an upcoming interrogation, formulate questions and strategies for the interrogation, and observe or participate in the interrogation.

The documents and corresponding articles also account for how the staff spent their free time doing water sports, going to a Tiki bars, or:

Pottery, hiking, nature walks, biking, paintball, martial arts, tennis, racquetball, basketball, softball, and bowling.

This all sounds like a relaxing, enjoyable vacation. But reports from FBI agents who were disturbed by the conditions under which the prisoners were questioned all stem from the same time period. They state that prisoners were questioned while lying chained to the floor in fetal positions, while exposed to aggressive dogs, and while starved as just a few of the examples. The reports also stated that the interrogators claimed to be FBI agents, to avoid later blame for abuse and possible repercussions.

Another article from the Intercept goes through the most intriguing spy stories that have come to light as a result of the documents. For example, it highlights North Korean nuclear plans, Russian mobsters, and information about the rescue of a kidnapped female soldier.

The Intercept was founded in 2014 and is dedicated to fearless reporting. The site is known especially for its coverage of the Snowden documents–editor Glenn Greenwald was one of the original recipients. Batches of more documents are coming shortly, so stay tuned as more of Snowden’s revelations come to light.

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

The post The Intercept Releases New Snowden Documents, Details About Guantánamo appeared first on Law Street.

Recently, some Stanford Law students realized that they could request access to their admissions records in accordance with the 1974 Family Education Rights and Privacy Act. Students around the country, including some at Yale Law, caught wind of this and requested to see their records as well. So, how did Yale respond? By deleting all of its admissions data, of course.

Now Yale Law School will continue to delete all of its admissions evaluation data after each annual admissions cycle. Included in this data are numerical evaluations made by Yale Law School officials and faculty and the identities of the deciding individuals. This decision was made by law school administrators without any sort of announcement, and the school had already received multiple FERPA requests before the records were deleted.

This practice is not completely new for Yale–before they had electronic applications starting in 2001, applications were submitted on paper and were discarded after each year.  In an email, Yale Law School Associate Dean Asha Rangappa said: “recent FERPA requests prompted us to look at our record-keeping practices, and the decision was made to revert to our previous practice, which was to discard evaluation records after they had fulfilled their intended purpose.”

According to Rangappa, this decision was made to protect the professors at the school. Giving students access to their admissions records would mean giving them access to the notes and numerical evaluations made by the professors throughout the admissions process. These professors are the ones that go on to ultimately decide who get accepted into the prestigious law school, and allowing students to see those decisions may lead to tensions between students and faculty.

Rangappa also stressed that, “candid evaluations provided by faculty members and others are a critical part of the law school admissions process, and if faculty reviewers knew that this information could be shared with admitted students, they might be reluctant to participate in the process.”

Professors like Akhil Amar, who is also faculty chair of Yale Law School, understands this decision despite that fact that it was made without the law professors’ knowledge or input. He acknowledges that the maintenance of school records is the responsibility of the administration, and does not necessarily involve the faculty.

In fact, Amar not only understands, but also agrees with the decision. He told the Yale Daily News that it’s important to preserve the unique quality of the admissions process, and deleting these records will help do just that. If every student has access to their admissions records, then it wouldn’t be long before information about the admissions process were to spread. According to Amar, the faculty who have participated in the admissions process were doing so assuming confidentiality and protection.

Additionally, Amar argues that FERPA does not actually allow students to examine their admissions records. According to Amar, the purpose of FERPA is to ensure that future employers or other schools receive the correct student record.  Students are allowed to see their academic records to ensure that all of the information contained in them is correct. However, no one else will ever need to see the students’ admissions records. Amar stated:

As I understand the basic purpose of the law, it is to allow students to have access to files that perhaps might be visible to various outsiders — employers and judges and the like — to correct their records. When it comes to admissions decisions, that is not part of their academic record; that is not shared with anyone. FERPA is about giving the student privacy and a certain control of the information so that the student can correct any mistakes, and none of that applies to admissions information.

Students, however, had mixed reviews of the decision. Some students, like a 3L named Matt Kemp, understood it. According to Kemp, he understands the desire of the faculty to maintain privacy and protection throughout the admissions process, but also believes that the purpose of FERPA is to allow students to see their admissions records.

Others, like 3L Dennis Owrutsky, considered the decision to be “irresponsible.” He believes that in deleting the records, the school lost valuable insight into the admissions process. He said that “[The law school] now lacks the resources to evaluate itself objectively.”

While there were a range of responses to the decision, most students do agree that Yale Law School did not have a legal obligation to preserve the data. It will be interesting to see the response to increased awareness about FERPA. Will more students across the country start asking to see their admissions records? And if so, will other schools follow in Yale’s footsteps and take action in order  to preserve the integrity of their admission processes?

Brittany Alzfan

Brittany Alzfan is a student at the George Washington University majoring in Criminal Justice. She was a member of Law Street’s founding Law School Rankings team during the summer of 2014. Contact Brittany at staff@LawStreetMedia.com.

The post Yale Law School Deletes Admissions Records After Student Requests appeared first on Law Street.

Trade secrets are pieces of information that businesses or companies use to gain some sort of competitive advantage. In the United States, we have trade secret laws that allow companies to protect this valuable type of information from being stolen by other companies or individuals. Read on to learn everything you need to know about trade secrets, the laws that protect them, and the arguments for and against these protections.

What Are Trade Secrets?

Under the Uniform Trade Secrets Act, a trade secret is defined as:

Information, including a formula, pattern, compilation, program, device, method, technique, or process that derives independent economic value, actual or potential, from not being generally known to or readily ascertainable through appropriate means by other persons who might obtain economic value from its disclosure or use; and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Some well-known tangible examples of trade secrets include:

• The recipe for Mrs. Fields Chocolate Chip Cookies
• The New York Times bestsellers’ list methodology
• The WD-40 formula
• The Twinkies recipe
• The recipe for McDonald’s Special Sauce
• The Coca-Cola recipe
• Google’s algorithm

Less tangible examples of trade secrets include consumer information or lists. Each of those secrets have made their corresponding products incredibly popular, but should they fall into the hands of competitors, they would lose their competitive advantage.

 What are Trade Secret Laws?

Trade secrets are protected by federal law, state law, and contracts between businesses and employees or associates.  This triple layer of protection differentiates them from, and in some cases makes them more effective than, patent laws. Trade secret law applies to a much wider range of information than other forms of intellectual property (IP) law, such as patents. Unlike patent protection, which expires after twenty years, trade secret protection does not expire.  Trade secret protection does not need to consist of information that is defensible by other IP laws.  Even if information does not qualify for patent, copyright, or trademark protection, it can still qualify for trade secret protection. A big, valuable difference between trade secrets and patents is how they’re disseminated to the public. A patented piece of information is owned by the patent holder; they release it into the public and in return get to profit off of it for as long as they own that patent. A trade secret stays secret, and gives the company its competitive value.

Trade secret protection, however, is not applied to information that is common knowledge or is publicly available. For example, if a telemarketing company used the entire phone book as a potential customer list, the company could not claim trade secret protection over the contents of the phone book. Moreover, unlike patents, trade secret protection can be bypassed if the information is obtained independently of the owner of the secret e.g. through reverse engineering or independent or accidental discovery.  The protection cannot be circumvented through improper means such as industrial espionage or misappropriation.

Perpetrators of misappropriation of trade secrets can be subject to federal and state civil and criminal liabilities; however, a company must be able to demonstrate that it undertook reasonable methods of protecting the alleged trade secrets in order for trade secret protective legislation to apply.  If the company cannot show that it undertook reasonable measures to protect the information, then it can lose its trade secret rights even if it is illegally obtained.

The Uniform Trade Secrets Act 

The Uniform Trade Secrets Act was created in 1979 and updated in 1985 in an attempt to create consistent American law across state borders. It was written on the heels of a Supreme Court decision — Kewanee Oil Co. v. Bicron Corp. — that legitimized the use of trade secret laws. After that court decision, many states created their own versions; however, given that many American companies operate across state lines, it’s understandable why consistency was desired.

As of 2013, 47 states, the District of Columbia, Puerto Rico, and the Virgin Islands adopted the UTSA, the only exceptions being New York, Massachusetts, and Texas. Those states have their own laws that provide trade secret protections.

In addition to protecting the trade secrets of companies, the UTSA puts remedies in place for when the laws are breached. These include injunctive relief: essentially a court-ordered prevention from a company using its competitor’s trade secret it obtained, as well as provisions allowing the payment of damages.

What are the benefits of trade secret laws?

Proponents of trade secret protection argue that the law recognizes that a company’s realm of economically valuable information extends beyond patentable and copyrightable content. This gives companies protection from unfair competition. It also alleviates companies’ fears that former employees can weaken their competitive position in the market by working for competitors or selling information. Unlike patents, trade secret protection has no registration costs, takes effect immediately, avoids procedural legal encumbrances, and lasts as long as the company needs.

Trade secret laws also promote collaboration, as strange as that may sound. If two companies embark on some sort of research mission together, they are more likely to be forthcoming and fully collaborative if they know that their confidential information is protected by law.

The Downsides of Trade Secret Laws

Opponents of trade secret protection argue that it gives businesses far too much power. Since the protection lasts until the secrets are discovered, the public’s use of beneficial innovations and freedom of information is restricted in the service of individual profits. Contractual trade secret restrictions can harm employees’ employment availability because the confidentiality and non-compete requirements remain with them after they change employers. These employees are limited in where they are able to work after changing jobs and limited in the knowledge and skills they can employ at any subsequent employment they find.

Case Study: Coca-Cola

The formula for Coca-Cola is one of the most famously sought-after trade secrets in the world. Coke actually loves the mystery surrounding its formula and tries to hype the public up for publicity and marketing reasons:

The history behind the Coca-Cola formula is fascinating, and makes it the perfect example of a trade secret. Starting in 1887, one of the first presidents of the company, Asa Chandler, demanded that no one ever write down the formula again for fear it could be stolen. According to the company, at any given time only two individuals actually know the formula. It is passed down in a ritualized manner, and those two individuals never travel together in case anything tragic ever happens.

New Horizons in Trade Secret Laws

As the world becomes increasingly globalized and the internet is an increasingly important part of the business landscape, trade secret laws are seeing some changes. Trade secret theft is much easier when companies have access to hackers and other tools of corporate espionage. Also, our companies have become not just fluid across state borders, but across international borders as well. American companies are sometimes worried that international competitors, who aren’t necessarily held to the same laws as American companies, will gain hold of valuable trade secrets.

Action in Congress 

In light of these concerns, American lawmakers have attempted to strengthen trade secret protections. Earlier this year, two bills were introduced in the House (H.R. 5233: “Trade Secret Protection Act of 2014”) and in the Senate (S. 2267: Defend Trade Secrets Act of 2014.) Both of these bills would create a private federal civil remedy option for companies whose trade secrets have been stolen.

International Action

China, now one of the United States’ most important global trade partners, has attempted to expand its trade secret protections. It is currently working on a trade secret law — it’s in draft status right now — but it’s part of a larger project that China is working on to expand its competition law protections. This action came after the United States had strong disagreements and legal action against China over the possible stealing of trade secrets:

The European Union is also working on strengthening trade secret protection laws. In May 2014, the EU clarified its position on trade secrets, and committed to making consistent laws throughout member countries. A press release from the EU published last winter read:

There are substantial differences in the laws in place in EU countries on protection against trade secret misappropriation. Some countries have no specific laws on the issue. Businesses find it difficult to understand and access the systems of other Member States and, whenever they become victims of misappropriation of confidential know-how, they are reluctant to bring civil court proceedings as they are not sure the confidentiality of their trade secrets will be upheld by the courts. The current fragmented system has a negative effect on cross-border cooperation between business and research partners and is a key obstacle to using the EU single market as an enabler of innovation and economic growth.

Technology and Trade Secrets 

Another new frontier in the issue of trade secret protections is protection for technological innovations, such as technology design concepts. Altavion, Inc. v. Konica Minolta Systems Laboratory Inc. was heard in California earlier this year. In this case, a small company called Altavion claimed that a process it had invented to authenticate documents had been stolen by one of its competitors, and that the process was a trade secret. The court ruled in Altavion’s favor.

Conclusion

Trade secrets are an incredibly important part of the American business structure. Many of the United States’ most well-known companies and products have some involvement in trade secrets. While the U.S. has taken admirable actions to protect those secrets, there are constantly new frontiers in the issue, including the advents of technology and globalization. As those topics expand, we should expect to see trade secret protections expand as well.

Resources

Primary

Uniform Trade Secrets Act: Text

European Commission: Commission Proposes Rules to Help Protect Against the Theft of Confidential Business Information

Additional 

Marquette IP Law Review: Why Do We Have Trade Secrets

Nature: The Good and Bad of Trade Secrets

IP Watchdog: Trade Secrets and Employee Mobility

WIPO: Patents or Trade Secrets?

Unemed: What You Need to Know About Patents and Trade Secrets

King Hall IP Law Assocation: History of Trade Secret Law

Uniform Law Commission: Trade Secrets Act Summary

PeterToren: Criminal Trade Secret laws

Listverse: How Trade Secrets Are Kept

TMS: Federal Trade Secrets Crimes

Hahn Loeser: Does Trade Secret Law also provide patent protection?

Journal of Economic Perspectives: Some Economics of Trade Secret Law

Association of Corporate Counsel: New Texas Trade Secret Law Helps Big Businesses

Beck Reed Riden: Does the Government Favor Businesses With Trade Secrets?

JD Supra: Technology Design Concepts Can be Trade Secrets

Managing IP: Trade Secrets Get Sexy

Buffalo Business First: Looming Changes in Trade Secret Protection

Time: Is this the real thing? Coca-Cola’s Secret Formula “Revealed”

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Trade Secret Laws: Competitive Advantages at Work appeared first on Law Street.