Not All Organizational Secrets are Trade Secrets

Tech group wants Boy Scout ‘perversion files’ blocked is an article written by Nigel Duara that recently appeared in the Seattle Times.  The article describes how TechAmerica, a leading technology trade association, wrote a brief supporting the Boys Scouts of America in its attempt to prevent its “perversion files,” also called “ineligible volunteer files” from being made public.  The perversion files monitor those who violate the rules of the Boys Scouts of American and include files on suspected pedophiles.  The Boys Scouts uses this information to try to prevent those individuals from volunteering again.  The current controversy arose when “[a] Multnomah County Circuit Court judge ruled that 20 years worth of Boy Scouts’ ineligible volunteer files, from 1965 to 1985, could be used in court, and in June ruled that they should be opened to the public.”  The Boy Scouts appealed.  TechAmerica wrote a brief supporting the Boy Scouts, arguing that opening the files to the public eliminates judicial protection of trade secrets.  TechAmerica seems to consider the perversion files a trade secret of the Boy Scouts.

What is a trade secret?  Washington State, which adopted the Uniform Trade Secrets Act, defines a trade secret as “information, including a formula, pattern, compilation, program, device, method, technique, or process that:  (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”  According to the U.S. Supreme Court, ‘[t]he maintenance of standards of commercial ethics and the encouragement of invention are the broadly stated policies behind trade secret law.”

Do the perversion files actually derive independent economic value from not being generally known to other persons who can obtain economic value from their disclosure or use?  Do the perversion files give the Boy Scouts an economic advantage over its competitors?  Is this situation akin to a business protecting its source code by keeping it secret?  How does keeping the perversion files from the public maintain standards of commercial ethics and encourage invention?

Not all information a company or organization wants to keep secret rises to the level of trade secrets as defined above.  It seems that TechAmerica’s real argument is that corporate secrets should be protected, period.  That is not and never has been the law.

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