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Two separate systems of law govern secrets. The first one concerns trade secrets: confidential business information that provides an enterprise with a competitive edge. The unauthorized use of a trade secret by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. The second system protects personal secrets. This system is information privacy law. In- formation privacy law deals with the regulation, storing, and use of personal information of individuals. While both systems concern secrets, the laws that govern them comprise entirely different regimes, and have almost nothing in common.
This Article aims to examine the different ways in which the law protects commercial and private secrets. The most fundamental difference is that the trade secrets regime forbids the unauthorized use of a business’s confidential information, while privacy law does not forbid the unauthorized use of a person’s confidential information. If a firm takes measures to protect information of value, the law forbids the use of this information. Yet, as to personal secrets, the mere fact that someone has taken measures to protect their privacy does not create an obligation to avoid misappropriation of their in- formation.
This asymmetry of protection is especially troubling when these two systems collide. For example, certain information can be subject to a trade secret of a company, while at the same time strongly ‘belong’ to an individual. Trade secret laws often prevent individuals from learning about uses that firms conduct with their own private information.
This Article explores the extent to which the distinction between the two laws is justified, and analyzes whether the law of information privacy can be modified to resemble trade secrecy more closely. This exploration is particularly relevant under today’s climate of commodification of private information, where both users and companies make transactional use of personal data on a regular basis.
*Assistant Professor (Senior Lecturer in Law), Ono Academic College. The author is grateful to Michael Birnhack, Rochelle Dreyfuss, Daniel Gervais, Sonya Katyal, Gideon Parchomovsky, Joel Reidenberg of blessed memory, Michael Risch, Sharon Sandeen, Ofer Tur Sinai, Deepa Varadarajan, Felix Wu, and Tal Zarsky, for helpful insights and advice. The author is also thankful for input received in the 2020 Intellectual Property Scholars Conference and in the Ono Faculty Workshop.