Publicizing Corporate Secrets for Public Good

University of Pennsylvania Law Review, Vol. 171

81 Pages Posted:
Christopher Morten

Columbia Law School; Yale Law School

Date Written: February 13, 2022

Abstract

Federal regulatory agencies in the United States hold a treasure trove of valuable information essential to a functional society. Yet little of this immense and nominally “public” resource is accessible to the public. That worrying phenomenon is particularly true for the valuable information that agencies hold on powerful private actors. Corporations regularly shield vast swaths of the information they share with federal regulatory agencies from public view, claiming that the information contains legally protected trade secrets (or other proprietary “confidential commercial information”). Federal agencies themselves have largely acceded to these claims and even fueled them, by construing restrictively various doctrines of law, including trade secrecy law, freedom of information law, and constitutional law. Today, these laws—and fear of these laws—have reduced to a trickle the flow of information that the public can access. This should not and need not be the case.

This article challenges the conventional wisdom that trade secrecy law restricts public agencies’ power to publicize private businesses’ secrets. In fact, federal agencies, and regulatory agencies especially, have long held and still hold statutory and constitutional authority to obtain and divulge otherwise secret information on private actors, when doing so serves the public interest. For many regulatory agencies, that authority extends even to bona fide trade secrets. In an age of “informational capitalism,” this disclosure authority makes U.S. federal regulatory agencies uniquely valuable—and perhaps uniquely dangerous. Building on recent work that explores this right in the context of drugs and vaccines, and drawing heavily from scholarship in privacy and information law, the article proposes a practical framework that regulators can use to publicize secret information in a way that maximizes public benefit and minimizes private harm. Rather than endorse unconstrained information disclosure—transparency for transparency’s sake—this article instead proposes controlled “information publicity,” in which regulators cultivate carefully bounded “gardens” of secret information. Within these gardens, agencies admit only certain users and certain uses of information. Drawing on existing but largely overlooked real-world examples, the article shows that regulators can effectively and selectively publicize trade secret information to noncommercial users while thwarting commercial uses. Regulators can protect trade secrets’ integrity vis-à-vis competitors while simultaneously unlocking new, socially valuable uses.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4041556