Why Public Interest Trumps Trade Secrecy

from the what-the-frack? dept

Most companies have a natural tendency to keep details of their activities secret -- the fear being that competitors might be able to exploit for commercial advantage the information that they obtain. But it may be in the public interest for some details to be released, even if this might prove inconvenient for the company concerned. That's the background to a letter sent by ten law professors, including Larry Lessig, to the Alaska Oil & Gas Conservation Commission, pointed out to us by infojustice.org.

The letter (pdf) concerns proposed new regulations for hydraulic fracturing (fracking). As the academics point out, whatever your views on this form of energy extraction, there are important general principles at stake here:

We, the undersigned law professors who teach and write about intellectual property and trade secrets, write in support of the Alaska Oil and Gas Conservation Commission (AOGCC) proposed hydraulic fracturing regulations that would provide for the disclosure of information that might in other contexts be deemed trade secrets that cannot be disclosed to the public, under proposed regulation 20 ACC 25.283(h).

While businesses engaged in hydraulic fracturing may have legitimate trade secrets, the public's interest in assuring that hydraulic fracturing is managed in a manner that addresses all significant risks may legitimately outweigh commercial concerns. To impede debate and discussion of the use of public natural resources in the name of commercial secrecy is to put commercial interests above the prior and more general interest in careful stewardship of the environment.

Put simply, some trade secrets must give way when broader public interests are at issue.
The letter offer three reasons why they support the new regulations calling for disclosure of information that might otherwise be regarded as confidential.
First, it is a basic principle in a democracy that the public shall conduct informed debate and discussion of public matters.
Without the facts, it's not possible to have a meaningful debate about important issues, which undermines the entire premise of democratic decision making.
Second, effective environmental management requires broad disclosure of specific data that describes any discharges into the environment -- including chemical identity, volume and locations of each chemical discharged -- and data on health and ecological effects.
Without detailed information about chemicals that are being used it is hard, if not impossible, to deal with any problems they cause. The letter quotes the following disturbing example:
in 2009, Cathy Behr, a nurse in Colorado, fell seriously ill after treating a worker who had been injured in a chemical spill. Her doctors diagnosed chemical poisoning, but the manufacturer of the product she was exposed to would not disclose its full ingredients, because it considered them proprietary. Ms. Behr has partially recovered, but she continues to have respiratory problems.
That certainly seems a pretty extraordinary state of affairs -- that someone should be unable to find out what she was exposed to in the course of her work, purely because a company deems it confidential information, and she is thus forced to live with the uncertainty of what the long-term consequences might be.
Third, trade secrecy law should not be used as a means to impede public access to EHS [environmental, health and safety] information.
That's because trade secrecy law is purely about keeping secrets from competitors: it is not about limiting access for other reasons, notably those of public health and safety. As the letter points out:
Trade secret law does not and should not exempt a firm from participation in the larger legal system, including warning and harm prevention.
In a sense, trade secrecy law only applies insofar it does not conflict with broader principles of law, such as the preservation of public health or the environment. The present case involving fracking usefully highlights that contrast, but it is always present, even in less contentious areas.

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    Suzanne Lainson (profile), Apr 18th, 2013 @ 8:27pm

    Ah, a subject I care about a lot

    Now this is something I hope generates a lot of interest here and elsewhere. One of the reasons so many citizens are opposed to fracking is that they don't know what is going on around them. The secrecy only reinforces their wariness. As fracking moves into heavily populated areas, next to homes, schools, parks, and the like, people are going to ask to know what risks there are.

     

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    Anonymous Coward, Apr 18th, 2013 @ 8:39pm

    Man, This pisses me the frack off..

     

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    Anonymous Anonymous Coward, Apr 18th, 2013 @ 9:49pm

    How to draw the line

    I sincerely believe that trade secrets should be the replacement to the patent system. It works, look at Coke.

    I also believe that trade secrets are abused, as in the examples given, and others.

    Therefore the issue becomes about what information a company may protect. Should they be allowed to refuse disclosure of a formula that will poison something or someone? Should the drug companies be able to refuse disclosure of ALL test results, not just the ones that make their case?

    Public or private, there needs to be a way to force disclosure of things that impact neighbors, or customers, or suppliers, or, for that matter, Mother Earth. (We currently have a weak (mesh quantum physics with the demanded dimensions that are unknown) understanding of the physical world. Why should we believe current engineers who say fracking is safe and wont hurt the water table or cause earthquakes or whatever.

    The stuff companies will need to keep quiet under a trade secret only system will be their development plans and actions, not what they release into the wild, or like fracking companies, start doing it. The ability to be first to market, listen to the marketplace, maintain innovation, and maintain the cycle of great new products into the stream (quietly until its public) will be the keys.

     

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      John Fenderson (profile), Apr 19th, 2013 @ 9:57am

      Re: How to draw the line

      I sincerely believe that trade secrets should be the replacement to the patent system


      I don't.

      Trade secrets predate patents. The patent system was intended to reduce the harm caused by everyone keeping their discoveries and inventions a secret: that the knowledge gained is never actually introduced to society at large and gets lost. Patents encourage sharing discoveries so they can be built on by others.

      Our current patent system has major, major problems. But in my opinion the idea behind patents is a good one, and keeping everything a secret would be a great loss to everybody.

       

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        PRMan, Apr 19th, 2013 @ 10:14am

        Re: Re: How to draw the line

        And originally, you couldn't "block" someone from using your patents. But you could go to court to compel them to pay you a reasonable fee for their use.

        Patents aren't the problem. Patent blocking and trolling is.

         

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          PRMan, Apr 19th, 2013 @ 10:16am

          Re: Re: Re: How to draw the line

          For instance, if Microsoft actually had valid patents against what Google is doing in Android, then it would be a perfect example of how patents are supposed to work. Google uses Microsoft inventions (like FAT32, for instance) and Microsoft makes a small amount of money for the use of their invention.

          But since they refuse to disclose the patent numbers, it would seem that they are trolling.

           

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        Anonymous Anonymous Coward, Apr 19th, 2013 @ 8:01pm

        Re: Re: How to draw the line

        The secret knowledge was indeed important when the concept of patents was being created, and may have lasted in its importance up to the late 19th century.

        The advent of reverse engineering, a better education system, and other technological advances may just overcome that importance. This is why I would be ok with trade secrets in lieu of patents.

        Of course, since trade secrets already exist, my solution would to be just take away patents entirely.

        In a world without patents, what would companies do?

         

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          Anonymous Anonymous Coward, Apr 19th, 2013 @ 8:08pm

          Re: Re: Re: How to draw the line

          I should have added, that today, secrets are rarely still secret once the product is in the wild.

           

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  • This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Apr 18th, 2013 @ 10:07pm

    Great idea! Let's apply it to Google!

    Oh, different then, eh?

    Here's a far better article and better decision too on generally same topic:

    http://www.truth-out.org/news/item/15721-pennsylvania-court-deals-blow-to-secrecy-obsessed -fracking-industry#13660412613331&action=collapse_widget&id=3511955

    This from an activist:
    “It is that disobedience, of entire communities sitting at lunch counters demanding to be served, that is our only hope of salvation in a world increasingly commandeered by a small handful of corporate decisionmakers intent on remaking the world as their own,” he said. “A revolution that subordinates the powers and rights of corporations to the rights of people and nature now waits in the wings.”

     

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      Anonymous Coward, Apr 18th, 2013 @ 10:42pm

      Re: Great idea! Let's apply it to Google!

      What exacty would you want disclosed and for what reason?

      You can't just assume a double standard when they're arent' even enough deltails to decide if the situation is the same or not

       

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      Anonymous Coward, Apr 18th, 2013 @ 11:53pm

      Re: Great idea! Let's apply it to Google!

      Another quality OOTB post brought to you by face-rolling your keyboard.

       

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      Anonymous Coward, Apr 19th, 2013 @ 1:10am

      Re: Great idea! Let's apply it to Google!

      What the fuck are you on about?

       

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      Zakida Paul (profile), Apr 19th, 2013 @ 2:11am

      Re: Great idea! Let's apply it to Google!

      How about we apply it to your paymasters - RIAA, MPAA and the like?

       

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    Pixelation, Apr 18th, 2013 @ 10:33pm

    "While businesses engaged in hydraulic fracturing may have legitimate trade secrets, the public's interest in assuring that hydraulic fracturing is managed in a manner that addresses all significant risks may legitimately outweigh commercial concerns. "

    This. A thousand times this.

    Fuck your profit if it will give me cancer.

     

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    Anonymous Coward, Apr 18th, 2013 @ 10:52pm

    Other areas

    The present case involving fracking usefully highlights that contrast, but it is always present, even in less contentious areas.


    I can only agree. One such area would be plastics and their impact on the environment, health, etc. - see for example Plastic Planet: http://www.imdb.com/title/tt1292648/

     

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    Anonymous Coward, Apr 18th, 2013 @ 11:33pm

    in 2009, Cathy Behr, a nurse in Colorado, fell seriously ill after treating a worker who had been injured in a chemical spill. Her doctors diagnosed chemical poisoning, but the manufacturer of the product she was exposed to would not disclose its full ingredients, because it considered them proprietary. Ms. Behr has partially recovered, but she continues to have respiratory problems.

    OSHA
    MSDS
    Right To Know

    Lawsuit
    EPA
    Fines

     

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    Anonymous Coward, Apr 19th, 2013 @ 12:30am

    Trade secrets are great they tell others exactly where to zero in in a product

     

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    special-interesting (profile), Apr 19th, 2013 @ 1:47am

    Its likely that the trade secrets are environmentally sensitive information on operations or chemicals used and the quantities or practices involved might bring others to harm.

    Agreement that disclosure of basically everything is required before any hearings can proceed. The should just toss out the case/proposal. If they don't want to talk about it then fine but please go away and don't ask for anything.

    If anyone wants a license or permit then please submit detailed operations and environmental impact studies. There have been a lot of complaints about fracking so something must be bad about it. Its normal to want to know more with research about it.

     

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    Anonymous Coward, Apr 19th, 2013 @ 3:25am

    simple way of fixing this: make trade secrets only a secret to those who compete with you. And create an exemption for information necessary to comply with the law.

     

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      Anonymous Coward, Apr 19th, 2013 @ 5:18am

      Re:

      What is purpose of patents then?

      Those drugs are patented, your competitors should not be able to do it already, so what is the point of all the secrecy?
      Easier would be to strip the patents of those drugs since they were not fully disclosed.

      This is a breech of a social contract.

       

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    Ninja (profile), Apr 19th, 2013 @ 4:05am

    Sounds like a great idea and I find it specially true for chemicals but... That's a titanic effort eh? I mean you'd need to go through a lot of very deep pockets to get this to law...

     

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    Anonymous Coward, Apr 19th, 2013 @ 4:43am

    Sounds like there will soon be a bill introduced to authorize the continued secrecy which cloaks the fracking industry, it will become commonly known as the Frag Gag Bill.

    No worry, the folks over in oil and gas have an outstanding safety record and would never endanger the lives of those in the communities they serve. If an incident would to ever occur, they would be the first to offer assistance to those affected and would be very forthcoming with information updates - there would no cover up at all. Trust us.

     

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    Anonymous Coward, Apr 19th, 2013 @ 4:57am

    I believe that if they want trade secrets companies should not be able to have patents.

     

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