A DISCUSSION OF LAW AND JOURNALISM

Stealing Secrets in the Sky

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By Leah Braukman

The Ethicist, our favorite Sunday New York Times Magazine columnist, recently explored this conundrum faced by “B.C.” of New Jersey:

On a recent flight, my colleague was seated next to an employee of our major competitor. My colleague realized this when the fellow began writing e-mails about possible problems with a significant new product. Is it ethical for us to capitalize on this fellow’s stupidity?

On the morality front, the views of The Ethicist, Ariel Kaminer, were clear. For example, reading your sister’s unlocked diary is a no-no, but reading information about your business competitor’s plans, if left out in the open, is perfectly fine. So if your airplane neighbor is careless enough to work on sensitive information in the close confines of an airplane, then you, the lucky competitor nearby, may profit from his carelessness guilt-free.

With regard to the law, things are a bit more complicated; those words on the passenger’s computer screen could contain a trade secret and therefore be legally protected. Ms. Kaminer wasn’t sure if seeing and then disseminating that secret would land B.C. in hot legal water, so she sought the guidance of an intellectual property attorney.

The verdict:  if the information is left out in the open, it’s no longer a secret, trade or otherwise.

But it’s not always this obvious.  How out in the open does something need to be in order to lose trade secret status?   Is a secret still a secret if someone can eavesdrop via high-tech hearing aid or peer through your bedroom window with binoculars? LASIS took the bait and investigated.  

Trade secret law varies slightly from state to state, and as the IP attorney Ms. Kaminer consulted put it, there “is no simple rule.” How can there be? The lengths that people will go to in order to learn others’ trade secrets boggles the mind…and sometimes, the law.

For example, in a 1970 Texas Court of Appeals case, two men took aerial photos of a methanol production plant from an airplane. The court’s decision begins: “This is a case of industrial espionage in which an airplane is the cloak and a camera the dagger.” In other words, the court did not condone this kind of activity, not even close. In fact, the court likened this behavior to a “school boy’s trick” and refused to accept the “law of the jungle” as an acceptable level of morality for commercial business and the pictures from up high were deemed a legal no-no.

If you think flying over someone’s property to sneak a peak at a trade secret is extreme, then consider this 2005 Pennsylvania District Court case of a company that hired a private investigator to coax a competitor’s trash hauler into re-routing the competitor’s garbage. Its Holy Grail: the competitor’s customer list. The court refused to agree with the mantra “one man’s trash is another man’s treasure,” and held that the garbage-picking company, although creative, basically, stunk.

In a more recent 2011 New Jersey District Court case, the information did not require renting a helicopter, diving into trash bins or any other outlandish means discovery. Instead, the gate to the trade secret was unlocked simply by going online, as the software company’s programming language was posted on the Internet. And yet, the court held, the information sought was not ripe for the picking. The court noted that the leaks had been accidental and revealed only portions of the programming language. In all instances, it was quickly taken down. All of this, said the court, meant that there was no chance that the defendant had casually come across this secret info.

While Ms. Kaminer and her consulted attorney agreed that your airplane armrest buddy can look over your shoulder and read (and pass on) whatever he gleans from your screen without facing legal consequences, I’m not sure they would feel the same about this under all circumstances.  Say for example, you were flying first class and you were far enough away from your neighbor that you couldn’t see his screen.  But when he got up for a restroom break, you moseyed over and snooped. Would the info up on a screen count as being left in public, even if my neighbor didn’t know someone nosey like me was around?  Or what if you were (sorry, times are tough) flying coach, so you were close enough to your neighbor (actually, in coach, too close)…but he used a screen protector, and you took a look at his screen when he nodded off to sleep. In this instance, he used the protector in a clear attempt to keep his info private, but he was, after all, sitting on an overnight flight and might have known that someone would look at his screen when he nodded off.

These hypothetical scenarios seem relatively tame compared to the shocking images one businessman couldn’t help but notice on a nearby passenger’s computer screen. On a recent flight, a University of Utah professor was caught looking at child pornography. The man sitting behind him was able to snap a photo with his cell phone and alert the police, all before landing.

In this situation, the snooper was not only not a lawbreaker, he was hailed as a hero. According to the Boston Herald, the professor is now in jail. If released, he is barred from any unsupervised contact with anyone under the age of 16 and from using a computer. All thanks to someone who took a peak through the seats.

Any thoughts, LASIS readers?

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One Response

  1. Stephen says:

    I love this — my daughter is taking her LSATs next year and I hope she ends up going to law school (like her mother is doing now). I would love for my daughter to contribute to a blog like this.

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