A trade secret is a form of intellectual property
that applies to business secrets. If a company or other organization
creates or compiles information that gives it an economic advantage
over its competitors, it can protect that information as a trade secret
-- in a sense becoming the "owner" of the trade secret. To do so,
however, a business must take reasonable precautions to keep the
information secret, and it loses its property right when competitors or
the public at large uncover the secret. Trade secrets law is governed
by state law. However, most U.S. states have adopted their own slightly modified version of the Uniform Trade Secret Act (UTSA), so there is a good deal of uniformity among state laws on the subject. For state-specific information, please see the State Law: Trade Secrets section of this guide.
The main goal of trade secrets law is to provide a way for businesses to capitalize on their unique practices or knowledge created through their time and effort. Unlike copyright, trade secrets law protects ideas and facts, rather than just the form in which they are expressed. A trade secret can be any kind of information relating to a business -- formulas, plans, designs, patterns, supplier lists, customer lists, financial data, personnel information, physical devices, processes, computer software, and a catch-all category of "know-how." The most "well known" trade secret is the "secret formula" for Coca-Cola, which has been kept under wraps for more than 100 years.
By definition, trade secrets are not
disclosed to the public. In this way, they are different from
inventions and creative works that are copyrighted or patented. And, in
contrast to copyrighted or patented information, trade secrets are not
time-limited -- they last as long as the company manages to keep them
secret. The company that creates them has the sole ability to exploit
the secret as long as it manages to keep it from becoming public
knowledge. The catch is that trade secrets can disappear without
warning or any specific period of time passing. Once disclosed, they're
gone. In addition, trade secrets law provides no protection against
someone independently developing the owner's trade secret information
or reverse engineering it from a finished product.
For the most part, trade secrets law is directed against industrial espionage and ex-employees sharing their former employers' proprietary information with new employers. You might justifiably ask, then, what all this has to do with citizen media and online publishing? Trade secrets law prohibits publishing someone else's trade secrets under certain circumstances, and businesses and other organizations sometimes look to trade secrets law as a way of stopping the traditional and non-traditional media from publishing valuable, sensitive, or damaging information. Many readers may recall Apple's dispute with Think Secret, AppleInsider, and O'Grady's PowerPage over leaks of confidential information about unreleased Apple products before MacWorld 2005. Apple turned to trade secrets law to make out its case. Ultimately, the courts never decided the merits of Apple's trade secrets claims because Think Secret settled and ceased operations, and Apple voluntarily withdrew its lawsuit against the other sites after a California court upheld the website operators' right to protect the identity of their sources under the California shield law. For additional details on the lawsuits, see our database entries, Apple v. DePlume and Apple v. Does. Going back to 1999, Ford sued a website operator named Robert Lane for posting its confidential documents and photographs on his site. Current and former Ford employees had provided Lane with secret materials in violation of their confidentiality agreements with the auto giant. The court found that Lane had likely violated the Michigan Trade Secrets Act, but held that the First Amendment to the U.S. Constitution did not permit the court to order Lane to remove the photographs and documents from the Internet. See Ford Motor Company v. Lane, 67 F. Supp. 2d 745 (E.D. Mich. 1999), for details.
If, like many people, your online activities are limited to synthesizing and commenting on materials you find online, then trade secrets law will not have any real impact on you. For a business to protect information under trade secrets law, the information must be secret. If you can find a piece of information by searching the Internet, then in all likelihood so can the company's competitors, and that information is not a trade secret. If, on the other hand, you engage in investigative reporting or regularly rely on confidential sources, you should familiarize yourself with trade secrets law in order to avoid potential liability and to stand up for yourself should someone send you a cease-and-desist letter. There are two scenarios where trade secrets problems are likely to come up; in legal terminology, this is when a court could find that you have "misappropriated" a trade secret.
Scenario One: You personally acquire a trade secret by improper means, such as theft, trespass, hacking, or breach of your own employment contract, even if you do not publish the trade secret. This type of conduct is outside the scope of this guide. If you are accused of engaging in such activities, we suggest that you seek immediate legal assistance. See the section on Finding Legal Help for some suggestions.
Scenario Two: You publish secret information received from a source and you know that the source acquired it through theft, hacking, or some other improper means, or breached a duty of confidentiality by giving it to you. This later situation could easily come up if you rely on employee sources for information about a company. If you want to rely on insider sources or are simply curious about what qualifies as a trade secret and what activities may cause trade secret liability, please see Basics of a Trade Secret Claim.
If you are considering publishing information that might be considered a trade secret, don't be intimidated. Not every company document is a trade secret, and a business ordinarily cannot stop you from publishing embarrassing -- but not secret or economically valuable -- information. Even if you publish a bona fide trade secret, the First Amendment of the U.S. Constitution may protect you from having to take it down and even from paying damages, especially if you publish the trade secret in order to report or comment on a matter of public concern. To illustrate both points, imagine that a source inside the XYZ Tire Company provides you with a secret company memorandum revealing a hazardous defect in the company's tires; you may have a host of legal arguments why publishing that information is lawful, including that the information in the memorandum is not a trade secret and that the First Amendment protects your activity. Keep in mind, however, that the law is not clear in this area. If you are interested in the legal protections the law may offer your publishing activities, consult the Publishing Trade Secrets section.
In the sections that follow, we lay out further specifics about the principles described above. This guide is not a full treatment of trade secrets law, but it does provide what we hope is a good understanding of the legal risks surrounding trade secrets.
If you obtain or publish a company's trade secrets, the company may have a legal claim against you for trade secret misappropriation. Generally speaking, a "trade secret" is secret information that confers a competitive business advantage on its owner by virtue of not being known to its competitors. The trade secret owner must exert reasonable efforts to maintain the secrecy of this information, or it ceases to be a trade secret. When a person obtains a trade secret improperly (such as by theft, bribery, or breach of a confidentiality agreement) or publishes it, knowing that someone else acquired it improperly, he or she has "misappropriated" the trade secret. This is the legal wrong against which trade secrets law protects. Possible defenses against a misappropriation claim are discussed in the Publishing Trade Secrets section.
State law governs trade secrets. Most U.S. states have adopted their own slightly modified version of the Uniform Trade Secret Act (UTSA), so there is a good deal of uniformity among state laws on the subject. The discussion below is based on the UTSA. For state-specific information, please see the state pages.
Under the UTSA, a trade secret has three basic characteristics:
Trade secrets can take many forms. They can be formulas, plans, designs, patterns, supplier lists, customer lists, financial data, personnel information, physical devices, processes, computer software, and a catch-all category of "know-how" -- just about any kind of secret information that relates to a business. Even a compilation of generally known facts can be a trade secret, if the compilation confers a competitive edge to whomever has access to it and is kept secret. The Chilling Effects FAQ on Trade Secrets has additional information on what companies can protect as a trade secret. Below we discuss the three elements of a trade secret, listed above.
(1) The information is secret
For information to be "secret," it must not be generally known by or readily ascertainable to competitors. A trade secret loses its "secret" status if a competitor of the owner knows about it; the public at large need not know about it for it to cease being secret. Take for example the formula for Coca-Cola -- right now, virtually no one knows what it is, so it is secret. If one of the Coca-Cola Company's competitors somehow obtained the formula, the formula would lose its "secret" status under the law, even if the competitor did not disclose it to the public at large. On the other hand, if an individual or small group of individuals gained knowledge of the formula, but the Coca-Cola Company stopped them from communicating it to the company's competitors, the formula would not lose its "secret" status.
As we discuss more fully in Publishing Trade Secrets, if a company's information is widely available on the Internet, it probably isn't "secret" because the entire public, including competitors, has access to it.
(2) The information confers a competitive advantage
The information must also give its owner an economic advantage over its competitors. To determine this, courts look at a number of factors: (a) the value the information has to the owner and its competitors; (b) how much effort or money the owner put into developing the information; (c) how seriously the owner tried to keep the information secret; (d) how hard it would be for others to properly acquire or duplicate the information; and (e) the degree to which other people have placed this information in the public domain or made the information readily ascertainable by applying for a patent or marketing.
To use Coke as an example again, the factors point towards the conclusion that the formula confers a competitive advantage. Most importantly, the industry perceives Coke's formula as so valuable that several people tried to sell it to PepsiCo for $1.5 million in 2006. In addition, the Coca-Cola Company makes serious efforts to keep the information secret -- keeping the original formula in a bank vault and supposedly letting only two executives know the formula at the same time. It is not clear how easy it would be for others to acquire this information -- many people claim to have reverse engineered it, but it has never been proven. The information plainly is not in the public domain.
(3) The information is subject to reasonable efforts to keep it secret
Finally, the owner of a trade secret must make reasonable efforts to keep the information secret. What is reasonable is determined by a cost-benefit analysis that varies from case to case. For example, in Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174 (7th Cir. 1991), the court considered a trade secrets claim by a printing press manufacturer which alleged that a competitor had misappropriated drawings of machine parts. The company had given the part drawings to a limited number of vendors and their own engineers. The court explained that it would not be reasonable to require the manufacturer to forbid any copying of the drawings, forcing all of the vendors and engineers to share a single copy, noting that "perfect security is not optimum security."
To use the Coke example one last time, the company certainly takes reasonable efforts to keep the formula secret. As noted above, it keeps the formula locked in a vault, and only a few executives know it. Such extreme measures won't be necessary or practical for many businesses, and courts will take a case-by-case look at the reasonableness of the measures taken.
The legal wrong that trade secrets law protects against is "misappropriation" of a trade secret. Section 1(2) of the UTSA provides the following definition for the term:
While this definition looks technical and complicated, citizen media creators and other online publishers will want to focus on two relatively straightforward points:
First, you commit misappropriation if you personally acquire a trade secret by improper means. "Improper means" include theft, fraud, bribery, industrial espionage, breaching a contractual duty to keep something confidential, or inducing others to breach that duty. For example, if you take home confidential information from your job in violation of your employment contract, that alone could be misappropriation. For another example, if you hack into a company's computer and make copies of confidential files you find there, that likely would qualify as misappropriation. To be clear, if you acquire the information yourself, you do not have to disclose or publish it in order to be liable for misappropriation. The act of acquisition is enough. That said, publishing or sharing information that you acquire improperly would also be misappropriation.
Second, you commit misappropriation if you publish a trade secret and you know that the person who gave you the information acquired it through improper means or under circumstances giving rise to a duty to maintain its secrecy or limit its use. Even if you don't actually know that the person who gave you the information acquired it in this way, you may be liable if you are aware of facts that suggest that this person acquired the information improperly. For example, if documents are stamped "Confidential," or "Secret," this might be enough give you reason to believe that your source acquired them improperly. This type of misappropriation would cover situations where you receive secret documents or information from a source inside the company about which you want to publish. For instance, if your source has signed a confidentiality agreement with his or her employer, then simply giving you secret information would breach that agreement, and your publishing of the information would be misappropriation if you knew or had reason to know that your source was bound by such an agreement. Alternatively, if your source stole secret information or hacked into a company computer to get it, your publishing of the information would be misappropriation if you knew or had reason to know that he or she had done so.
One case has squarely addressed this kind of misappropriation in the citizen media context. In Ford Motor Company v. Lane, 67 F. Supp. 2d 745 (E.D. Mich. 1999), a blogger obtained confidential documents and photographs from current and former Ford employees. The court determined that the blogger had violate the Michigan Trade Secrets Act by publishing the documents and photographs because he had reason to know the employees who gave him the information had breached their duty to Ford not to reveal the information. As discussed in Publishing Trade Secrets, however, the court also held that the First Amendment did not permit it to order the blogger to stop publishing these materials.
Note that trade secrets laws in many states, such as California, state explicitly that reverse engineering is not an "improper means" of obtaining information and cannot be the basis for a misappropriation claim. In those states, if you or your source uses reverse engineering to obtain information that a company claims is a trade secret, you generally cannot be liable for misappropriation. However, you might still run into trouble if you or your source agreed not to engage in reverse engineering in a contract, such as an end-user licensing agreement.
If a court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:
The "statute of limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over took place. This time limit is typically set by state statute and is intended to promote fairness and keep old cases from clogging the courts. Section 6 of the UTSA sets the statute of limitations for trade secrets claims at three years. However, many states have amended this section of the UTSA, so the statute of limitations for trade secrets claims varies between three and five years depending on the state. See the state pages for the applicable term in your state.
Generally speaking, the limitations period for a trade secret claims runs from the time the plaintiff discovered the misappropriation or the time by which the plaintiff should have discovered it through the exercise of reasonable diligence.
If you are thinking about publishing something that looks like a company's internal -- and possibly secret -- document or information, you need to think about the potential legal consequences under trade secrets law. As explained in Basics of a Trade Secret Claim, if a document or piece of information turns out to be a trade secret, then you might be liable for damages, and a court might order you to take down the material. But not every company document is a trade secret, and a company ordinarily cannot stop you from publishing embarrassing -- but not secret or economically valuable -- information. And even if you publish a bona fide trade secret, the First Amendment of the United States Constitution may protect you from having to take it down and even from paying damages, especially if you publish the trade secret in order to report or comment on a matter of public concern. Thus, if you get your hands on a secret document that shows that a steel plant is spewing pollutants into a local river, the U.S. Constitution may protect your decision to publish this document even if you are aware that your source acquired it through improper means (e.g., theft or breach of a confidentiality agreement). As described in more detail below, however, the law is not entirely clear on these points, and you ultimately will have to make a decision about what to do based on your own willingness to take risks.
The sections below speak in terms of "defenses" -- i.e., what you could argue to protect yourself assuming someone sued you for publishing a trade secret. The focus on defenses should not confuse you into thinking that this information is not valuable before a lawsuit happens. Knowing how you might defend yourself can help you evaluate whether your publishing activity is legally protected or whether you face a serious risk of unwanted legal consequences.
These defenses relate to the legal definition of a "trade secret" and the act of "misappropriation." For background, see Basics of a Trade Secret Claim.
What You Published Was Not a Trade Secret
(1) Not Secret
Your surest defense to a trade secrets claim is to show that the information you published was not a secret when you published it because it was already "generally known." For example, you generally cannot be liable for trade secret misappropriation if you get the information in question from some published source, like a newspaper or book. Similarly, most material previously posted on the Internet is no longer secret. For example, in DVD Copy Control Association v. Bunner, 10 Cal. Rptr. 3d 185 (Ct. App. 2004), a trade association claimed that a website operator had misappropriated its trade secret when he posted DeCSS -- a code for breaking its DVD encryption technology -- on his website. A California appellate court held that DeCSS was not a trade secret when the defendant posted it because hundreds of other websites had already done so. Similarly, several federal district courts have found that numerous Church of Scientology documents were not trade secrets because many websites published the documents before the defendant. See, e.g, Religious Tech. Ctr. v. Netcomm On-Line Commc'n Servs., 923 F. Supp. 1231, 1256-57 (N.D. Cal. 1995); Religious Tech. Ctr. v. Lerma, 897 F. Supp. 260, 266 (E.D. Va. 1995).
Note, however, that publication on the Internet does not always strip information of its trade secret status. For example, information that appears only on an obscure site or sites, and information that appears and quickly gets taken down may remain a trade secret, and you might be liable for publishing it if you have reason to know that it was acquired through improper means.
Even if information was secret when you first disclosed it online, if it becomes public knowledge by the time a plaintiff asks a court for an injunction against you (i.e., an order requiring you to take down the material and not publish it in the future), you may convince the court not to issue the order. The court may not issue an injunction without the plaintiff showing that it would be "irreparably harmed" absent the order requiring you not to publish the trade secret. But if the information is already publicly available, then you cannot harm the plaintiff by publishing what everyone already knows. Even if an injunction is improper, however, a plaintiff can still seek money damages from you.
(2) Generates No Economic Value
You may also avoid trade secret liability if the information you published could not give its owner an economic advantage over its competitors by remaining secret. You could use this defense if a company tries to use trade secrets law to shield embarrassing information that does not relate to its competitive position vis-a-vis its rivals. For example, in MicroStrategy Inc. v. Business Objects, S.A., 331 F. Supp. 2d 396 (E.D. Va. 2004), a court determined that an email sent by a company's CEO to all employees about the the company's financial difficulties was not a trade secret. The email, while interesting to some, had no potential economic value and was about to be made public in a press release anyway.
In another case, Buffets, Inc. v. Klinke, 73 F.3d 965 (9th Cir. 1996), the owners of the Old Country Buffet restaurant chain claimed another chain had stolen their trade secrets when it copied their recipes, but the court determined the recipes had no economic value. The court reasoned that "there was no demonstrated relationship between the lack of success of [the] competitors and the unavailability of the recipes" and, because, in fact, OCB's cooks had used simplified versions of the recipes in preparing their food, so it was unlikely the recipes themselves had conferred a benefit on OCB.
(3) No Reasonable Efforts to Maintain Secrecy
One other way you can defend yourself is the owner of the "secret" did not take reasonable steps to maintain its secrecy. The exact steps required will vary depending on the secret involved, but there is a good chance that information is not a trade secret if a company has failed to take any affirmative steps to protect it. For example, in Hoffmann-La Roche Inc. v. Yoder, 950 F. Supp. 1348 (S.D. Ohio 1997), a federal district court found a company had failed to take sufficient to make a reasonable effort to ensure secrecy because it did not require its clinical investigators to sign confidentiality agreements, it failed to stamp documents "confidential" or "secret," it widely disseminated the information, and it did not use other controls like restricting access to the physical location of the secret, the use of safes, or discussing the importance of confidentiality with people who received the information. If you find documents or information online, you may have a decent argument that the owner did not maintain reasonable efforts to keep the material secret (in addition to the argument that the material is "not secret," as explained above).
You Did Not Commit Misappropriation
Another possible defense is that neither you nor your source(s) used improper means to obtain the information. The Supreme Court noted in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), that "discovery by fair and honest means, such as by independent invention, accidental disclosure, or by so-called reverse engineering" is not misappropriation. Often, this argument would go hand and hand with the argument that the information in question was not secret. If the information is publicly available, then you generally do not need to rely on theft, deception, or breach of confidentiality in order to get a hold of it.
For example, in Religious Technology Center v. Lerma, 908 F. Supp. 1362 (E.D. Va. 1995), the Washington Post published Scientology documents it had obtained from a publicly available court file and the Internet. The district court determined that the Post had not misappropriated the Church of Scientology's trade secrets because the paper obtained the materials from legitimate, publicly available sources. The court further noted that "[a]lthough the person who originally posted a trade secret on the Internet may be liable for trade secret misappropriation, the party who merely downloads Internet information cannot be liable for misappropriation because there is no misconduct involved in interacting with the Internet." Similarly in DVD Copy Control Association v. Bunner, 75 P.3d 1 (Cal. 2003), the California Supreme Court considered a case where a programmer had reverse engineered DVD encryption software. While the majority of the court did not consider the issue, Justice Moreno, concurring, expressed serious doubt that reverse engineering was an improper act. In their versions of the Uniform Trade Secrets Act, California, Illinois, and Oregon explicitly state that reverse engineering alone does not constitute misappropriation.
Even if you are dealing with a bona fide trade secret and you have reason to believe that your source acquired it improperly, the First Amendment of the U.S. Constitution may stop a court from ordering you not to publish it. You may be protected by something known as the "prior restraint" doctrine. The Supreme Court held in the Pentagon Papers case, New York Times v. United States, 403 U.S. 713 (1971), that a plaintiff must make an extraordinary showing of harm in order to obtain a court order that stops the news media from publishing information on a matter of public concern. The United States government had sought an injunction to prevent the New York Times and Washington Post from publishing information from a classified study on the Vietnam War. Though the materials "pose[d] substantial dangers to national interests," the court was unwilling to stop the newspapers from printing them. As one district court found in Religious Technology Center v. Lerma, 897 F. Supp. 260 (E.D. Va. 1995), "If a threat to national security was insufficient to warrant a prior restraint ... the threat to plaintiff's ... trade secrets is woefully inadequate."
Although the law is not entirely certain on this point, a number of courts have extended the prior restraint doctrine to trade secret cases. In CBS v. Davis, 510 U.S. 1315 (Blackmun, Circuit Justice 1994), after CBS News shot the operations of a meatpacking company on an undercover camera, the company sought and obtained an injunction preventing CBS from broadcasting the video footage, claiming that the broadcast would disclose the company's trade secrets. Acting pursuant to a special procedure, Justice Blackmun of the Supreme Court stayed the injunction, ruling that the possibility of economic harm was not a sufficient justification for a prior restraint. (Note that this case does not have great value as precedent because the full Supreme Court did not decide the case.)
Courts have applied the prior restraint doctrine to Internet publishers as well as to the mainstream media. In Ford Motor Company v. Lane, 67 F. Supp. 2d 745 (E.D. Mich. 1999), the auto company sought a court order preventing a blogger from posting the company's internal documents online. The documents were provided to the blogger by anonymous sources (which the court believed were likely former and current Ford employees). Because Lane had reason to know that his sources had given him Ford's trade secrets in violation of their confidentiality agreements, the federal district court determined that the blogger was likely violating the Michigan Trade Secrets Act. Nevertheless, the court held that the prior restraint doctrine prevented it from issuing an injunction requiring Lane to take the confidential information off his blog. Protecting the company's vanity and commercial self-interest was not a sufficient ground to stop the blogger from publishing, the court noted. Another federal district court came to a similar conclusion in Religious Technology Center v. F.A.C.T.NET, Inc., 901 F. Supp. 1519 (D. Colo. 1995)
In contrast, other courts have upheld the use of an injunction to bar publication of a trade secret, at least in some situations. In DVD Copy Control Association v. Bunner, 75 P.3d 1 (Cal. 2003), the California Supreme Court found that an injunction prohibiting the posting of DeCSS was not an invalid prior restraint. However, the court expressly limited its reasoning to publication of secret information that is not a matter of public concern. Therefore, publication of trade secrets for news reporting or news commentary would not fall under the Bunner case. In Garth v. Staktek Corp., 876 S.W.2d 545 (Tex. App. 1994), a Texas appellate court upheld an injunction barring a company from selling a technology developed with misappropriated trade secrets and from revealing information about the technology to third parties.
Despite the protection offered by the prior restraint doctrine, you should be aware of two caveats. First, the prior restraint doctrine may not help you in a situation where you have personally signed an agreement promising to keep materials confidential. In Ford Motor Company v. Lane, 67 F. Supp. 2d 745 (E.D. Mich. 1999), the court noted that "use of trade secrets in violation of a confidentiality agreement or in breach of a fiduciary duty is not protected by the First Amendment." For example, if you agree in an employment contract not to disclose your employer's trade secrets and then post that information on your blog, the First Amendment may not protect you from an injunction. On the other hand, if you receive trade secrets from a source, the First Amendment may protect you, even if that source violated a confidentiality agreement or otherwise acted improperly. Second, the prior restraint doctrine only stops a court from ordering you not to publish information. It does not stop a court from holding you liable for civil damages or criminal penalties. As discussed immediately below, however, other First Amendment considerations may bar civil or criminal liability under certain circumstances.
Beyond protecting you against an injunction, the First Amendment may protect you from civil liability or criminal prosecution for publishing trade secrets. This potential protection stems from a case called Bartnicki v. Vopper, 532 U.S. 514 (2001). In that case, an unidentified person intercepted and recorded a phone call between Bartnicki, a union negotiator, and the the president of the union. Then, the head of a local taxpayer's group received the tape in his mailbox without any indication of where it came from. The head of the taxpayer's group gave the tape to Vopper, a radio commentator, and he played it on the air. Bartnicki sued Vopper for publishing the contents of an illegal recording in violation of federal wiretapping law, knowing or having reason to know that it was illegally recorded. See 18 U.S.C. § 2511(1)(c). Vopper argued his disclosure of the contents of the illegally recorded tape was protected by the First Amendment. Finding that "a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern," the Supreme Court refused to enforce federal wiretapping law against Vopper.
Although no court has yet applied Barnicki to block liability for publication of trade secrets, its reasoning could apply to a trade secret case where a publisher has reason to know that the information was acquired through improper means, but did not himself or herself engage in any misconduct or breach any agreement in order to get the information. The argument goes: Bartnicki protects you from liability when you publish trade secrets relevant to a matter of public concern, when you did not personally steal or breach a duty of confidentiality in order to obtain the information, but rather received it from a source who breached a duty of confidentiality or otherwise acted improperly.
Whether a court would actually accept this argument is far from certain. In Bartnicki, the Court explicitly noted it was not deciding whether the First Amendment would bar liability in a case involving trade secrets, on the assumption that trade secrets would be a matter of purely private concern. If you could show that a trade secret related to a matter of public concern, which it might well if you published it in the process of news reporting, commentary, or criticism, then the general reasoning of Bartnicki might apply to prohibit liability. For example, if you blog about secret documents that show a problem with a car company's emissions standards, then Bartnicki might protect you from liability if you did not yourself engage in improper conduct to get the documents.
Only one court so far has ruled on the application of Bartnicki to trade secrets: the California Supreme Court, in DVD Copy Control Association v. Bunner. While the court found that the trade secrets in issue in Bunner were not protected by the First Amendment, its ruling was based on its belief that those trade secrets, since they were only technical information, did not "involve[] a matter of public concern [or] implicate[] the core purpose of the First Amendment." So even in California, if you published trade secrets more directly involving a matter of public importance, you would still have a strong argument that your speech should be protected. For example, if you published secret information showing that a company's voting machines were not working properly, you could argue that the Bunner case should not apply.
You might be concerned that a user of your website or blog could post trade secrets there without your knowledge or understanding of the character of the information. Section 230 of the Communications Decency Act (CDA 230) protects website owners from many claims based on user comments and other third-party content, but it does not apply to "intellectual property" claims. 47 U.S.C. § 230(e)(2). While the law is not settled yet, the term "intellectual property" may include state trade secrets claims. Thus, if a user posts trade secrets on your website or blog, the owner of those trade secrets may be able to sue you for your user's conduct.
For details on CDA 230, please see our Primer on Immunity and Liability for Third-Party Content Under Section 230 of the Communications Decency Act.
Each state has its own law relating to trade secrets. However, most U.S. states have adopted their own slightly modified version of the Uniform Trade Secret Act (UTSA), so there is a good deal of uniformity among state laws on the subject. Choose your state from the list below for state-specific information on trade secrets law.
Note: This page covers information specific to California. See the Trade Secrets overview for more general information.
The California Uniform Trade Secrets Act ("CUTSA") is located at sections 3426 to 3246.11 of the California Civil Code. CUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.
Like the Uniform Trade Secret Act, CUTSA prohibits "misappropriation" of trade secrets and provides certain remedies. In addition, California law may impose criminal penalties for stealing trade secrets. See Cal. Penal Code §§ 499c, 502.
Cal. Civ. Code 3426.1 defines the key terms of CUTSA:
(a) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Reverse engineering or independent derivation alone shall not be considered improper means.
(b) "Misappropriation" means:
(c) "Person" means a natural person, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.
(d) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.
If a court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:
The statute of limitations for a trade secret claim in California is three years. Cal. Civ. Code § 3426.6 (scroll down).
Note: This page covers information specific to Florida. See the Trade Secrets overview for more general information.
The Florida Uniform Trade Secrets Act ("FUTSA") is located in chapter 688 of title XXXIX of the 2007 Florida Statutes. FUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.
Like the Uniform Trade Secret Act, FUTSA prohibits "misappropriation" of trade secrets and provides certain remedies. In addition, Florida law may impose criminal penalties for stealing trade secrets. See Fla. Stat. § 812.081.
Fla. Stat. § 688.002 defines the key terms of FUTSA:
(1) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.
(2) "Misappropriation" means:
(3) "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.
(4) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process that:
For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.
If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:
The statute of limitations for a trade secret claim in Florida is three years. See Fla. Stat. § 688.007.
Note: This page covers information specific to Georgia. See the Trade Secrets overview for more general information.
The Georgia Trade Secrets Act of 1990 ("GUTSA") is located at title 10, chapter 1, article 27 of the Georgia Code. GUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.
Like the Uniform Trade Secret Act, GUTSA prohibits "misappropriation" of trade secrets and provides certain remedies. In addition, Florida law may impose criminal penalties for stealing trade secrets. See [Ga. Code § 16-8-13] (link is to entire code; you need to click through to title 16, chapter, 8, article 1, and then choose the specific provision).
Ga. Code § 10-1-761 (link is to entire code; you need to click through to title 10, chapter, 1, article 27, and then choose the specific provision) defines the key terms of GUTSA:
(1) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a confidential relationship or other duty to maintain secrecy or limit use, or espionage through electronic or other means. Reverse engineering of a trade secret not acquired by misappropriation or independent development shall not be considered improper means.
(2) "Misappropriation" means:
(3) "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other for profit or not for profit legal or commercial entity.
(4) "Trade secret" means information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which information:
For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.
If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:
The statute of limitations for a trade secret claim in Georgia is five years. See Ga. Code § 10-1-766 (link is to entire code; you need to click through to title 10, chapter, 1, article 27, and then choose the specific provision).
Note: This page covers information specific to Illinois. See the Trade Secrets overview for more general information.
The Illinois Trade Secrets Act ("ITSA") is located at chapter 765 of the Illinois Compiled Statutes. ITSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.
Like the Uniform Trade Secret Act, ITSA prohibits "misappropriation" of trade secrets and provides certain remedies.
765 Ill. Comp. Stat. 1065/2 (scroll down) defines the key terms of ITSA:
(a) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a confidential relationship or other duty to maintain secrecy or limit use, or espionage through electronic or other means. Reverse engineering or independent development shall not be considered improper means.
(b) "Misappropriation" means:
(c) "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other for‑profit or not‑for‑profit legal entity.
(d) "Trade secret" means information, including but not limited to, technical or non‑technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that:
For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.
If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:
The statute of limitations for a trade secret claim in Illinois is five years. See 765 Ill. Comp. Stat. 1065/7 (scroll down).
Note: This page covers information specific to Indiana. See the Trade Secrets overview for more general information.
The Indiana Uniform Trade Secrets Act ("IUTSA") is located at title 24, article 2, chapter 3 of the Indiana Code. IUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.
Like the Uniform Trade Secret Act, IUTSA prohibits "misappropriation" of trade secrets and provides certain remedies.
Ind. Code § 24-2-3-2 (scroll down) defines the key terms of IUTSA:
"Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.
"Misappropriation" means:
"Person" means a natural person, limited liability company, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.
"Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.
If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:
The statute of limitations for a trade secret claim in Indiana is three years. Ind. Code § 24-2-3- (scroll down).
Note: This page covers information specific to Massachusetts. See the Trade Secrets overview for more general information.
Massachusetts has not adopted a version of the Uniform Trade Secrets Act (UTSA), which is discussed in the Basics of a Trade Secret Claim. Like the UTSA, however, Massachusetts law creates civil liability for acquisition of trade secrets through improper means. In addition, Massachusetts is one of the few states that imposes criminal liability for improper acquisition of trade secrets - unlawfully taking a trade secret is included in the definition of the crime of larceny and can result in imprisonment.
Massachusetts law defines a trade secret as "anything tangible or intangible or electronically kept or stored, which constitutes, represents, evidences or records a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention or improvement." Mass. Gen. Laws. ch. 266, § 30. From a practical perspective, this definition of "trade secret" is similar to that discussed in Basics of a Trade Secret Claim.
Unlike the Uniform Trade Secret Act, Massachusetts law does not use the word "misappropriation." Instead, it lists a number of activities that trigger civil liability:
Mass. Gen. Laws ch. 93, § 42. It is not clear whether Massachusetts law prohibits publishing a trade secret while knowing that it was acquired by a source through improper means. Undoubtedly, you could be liable for publishing a trade secret if you personally obtained it through any of the improper means listed above.
The Massachusetts criminal statute relating to trade secrets prohibits the following activities:
Mass. Gen. Laws. ch. 266, § 30. It does not look like the law makes it a crime to publish a trade secret, so long as you do not personally obtain it through any of the improper means listed above.
If a court finds that a defendant has unlawfully taken a plaintiff's trade secret(s), it may impose the following penalties and remedies:
The statute of limitations for a trade secret claim in Massachusetts is three years. See Mass. Gen. Laws ch. 260, § 2A .
Note: This page covers information specific to Michigan. See the Trade Secrets overview for more general information.
The Michigan Uniform Trade Secrets Act ("MUTSA") is located in chapter 445 of the Michigan Compiled Laws. MUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.
Like the Uniform Trade Secret Act, MUTSA prohibits "misappropriation" of trade secrets and provides certain remedies.
Mich. Comp. Laws § 445.1902 defines the key terms of MUTSA:
(a) “Improper means” includes theft, bribery, misrepresentation, breach, or inducement of a breach of a duty to maintain secrecy or espionage through electronic or any other means.
(b) “Misappropriation” means either of the following:
(c) “Person” means an individual, corporation, partnership, association, governmental entity, or any other legal entity.
(d) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that is both of the following:
For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.
If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:
The statute of limitations for a trade secret claim in Michigan is three years. See Mich. Comp. Laws § 445.1907.
Note: This page covers information specific to New Jersey. See the Trade Secrets overview for more general information.
New Jersey has not adopted a version of the Uniform Trade Secrets Act (UTSA), which is discussed in the Basics of a Trade Secret Claim. In fact, New Jersey does not have a statute governing trade secrets law. Instead, it is based solely on the common law, which is the compilation of prior court decisions in the state. Like the UTSA, however, New Jersey law creates civil liability for "misappropriation" of someone else's trade secret(s). New Jersey's criminal laws relating to theft may also impose criminal liability for stealing trade secrets.
New Jersey courts have adopted the definition of trade secret from Section 757 of the Restatement of Torts: "A trade secret consists of a formula, process, device, or compilation which one uses in his business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it." The Restatement of Torts explains further that a trade secret differs from other secret information in a business in that it is not simply information about single or ephemeral events, but rather a process or device for continuous use in the operation of the business. From a practical perspective, this definition of "trade secret" is similar to that discussed in Basics of a Trade Secret Claim.
The general meaning of "misappropriation" under New Jersey law is not entirely clear because many of the cases focus on situations where former employees passed secrets to a competitor, but it looks like misappropriation can happen in two ways, discussed in detail in the Basics of a Trade Secret Claim. First, you commit misappropriation if you personally acquire a trade secret by improper means. "Improper means" includes criminal acts, such as theft, fraud, breaking and entering, trespass, and bribing and swindling, as well as acts taken to overcome measures put in place to maintain secrecy of the trade secret information, such as fraud, interference with contractual obligations, and breach of a contract in obtaining or using the trade secret. Reverse engineering and independent development are not "improper means." Second, you commit misappropriation if you publish a trade secret while knowing that the person who gave you the information acquired it through improper means or under circumstances giving rise to a duty to maintain its secrecy or limit its use.
If a court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following penalties and remedies:
The statute of limitations for a trade secret claim in New Jersey is two years.
Note: This page covers information specific to New York. See the Trade Secrets overview for more general information.
New York has not adopted a version of the Uniform Trade Secrets Act (UTSA), which is discussed in the Basics of a Trade Secret Claim. In fact, New York does not have a statute governing trade secrets law. Instead, it is based solely on the common law, which is the compilation of prior court decisions in the state. Like the UTSA, however, New York law creates civil liability for "misappropriation" of someone else's trade secret(s). New York's criminal larceny statute may also impose criminal liability for stealing trade secrets.
New York courts have adopted the definition of trade secret from Section 757 of the Restatement of Torts: "A trade secret consists of a formula, process, device, or compilation which one uses in his business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it." The Restatement of Torts explains further that a trade secret differs from other secret information in a business in that it is not simply information about single or ephemeral events, but rather a process or device for continuous use in the operation of the business. From a practical perspective, this definition of "trade secret" is similar to that discussed in Basics of a Trade Secret Claim. New York courts have adopted the definition of trade secret from Section 757 of the Restatement of Torts.
Under New York law, misappropriation consists of use or disclosure of a trade secret that was acquired through a relationship of trust (such as employment), or through fraud or other improper means, such as theft, bribery, or hacking. This definition appears to include publishing a trade secret while knowing that your source obtained it through improper means or in breach of a confidentiality agreement.
If a court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following penalties and remedies:
The statute of limitations for a trade secret claim in New York is three years.
Note: This page covers information specific to North Carolina. See the Trade Secrets overview for more general information.
The North Carolina Trade Secrets Protection Act is located in chapter 66, article 24 of the North Carolina General Statutes. This Act is similar to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.
Like the Uniform Trade Secret Act, The North Carolina Trade Secrets Protection Act prohibits "misappropriation" of trade secrets and provides certain remedies.
N.C. Gen. Stat. § 66-152 defines the key terms of the Act:
(1)"Misappropriation" means acquisition, disclosure, or use of a trade secret of another without express or implied authority or consent, unless such trade secret was arrived at by independent development, reverse engineering, or was obtained from another person with a right to disclose the trade secret.
(2)"Person" means an individual, corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership, association, joint venture, or any other legal or commercial entity.
(3)"Trade secret" means business or technical information, including but not limited to a formula, pattern, program, device, compilation of information, method, technique, or process that:
If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may im