If Lady Gaga tweets your trade secret, is it still a trade secret?

In a matter of minutes, or even seconds, a single tweet may reach thousands or, possibly, millions of people. Now, just imagine if that tweet contained proprietary information. (You know, like if Lady Gaga tweeted the code to Microsoft Windows 7 to her millions of followers). Ummm…work with me here…

But, even in the days before Twitter, publishing content on a blog or a message board meant putting information out in the public domain for anyone — including a competitor — to view. What if that information was supposed to be confidential? Does a trade secret lose its legal trade-secret status if it is published on the internet? Find out the answer after the jump…

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That was the question that a federal court in New Jersey recently tackled in Syncsort Inc. v. Innovative Routines Int’l, Inc. According to the court, widespread publication of information on the Internet may destroy its status as a trade secret. However, if the published information retains its value to the creator, then the law may still recognize the published information as a trade secret.

If some of the trade secret is posted, the owner may still be protected.

If bits and pieces of a trade secret are published on the internet, it does not negate “trade secret” status, provided that the person who views those bits and pieces cannot reverse engineer the entire trade secret. So, if someone anonymously tweeted a few lines of Windows 7 code, Windows 7 does not necessarily lose trade-secret status as long as someone who sees the tweet cannot precisely reverse engineer it.

Even if a Microsoft employee was behind the tweet, NJ law will recognize that Microsoft still has a “trade secret” provided that tweet only revealed a “minimal portion” of the entire code.

And if all of the trade secret is posted, the owner may still be protected.

Even if someone posted all of the Microsoft 7 code, according to the New Jersey Court, it remains a “trade secret” if the internet posting is “sufficiently obscure or transient or otherwise limited” so that it was not made “generally known to the relevant people” (like potential competitors).

Ultimately, the owner must treat the subject information as a trade secret.

If the “trade secret” holder does not take reasonable precautions to protect against its disclosure, then do not expect the court to treat the proprietary information as a trade secret if it is shared with others. Three quick tips:

  1. Keep trade secrets under lock and key or otherwise password protect them.
  2. Spell out in a written confidentiality policy that trade secrets must be treated as such. (Make sure that your social-media policy mentions this too).
  3. Don’t share the trade secrets with anyone who doesn’t need to know them.

Bonus tip for companies hiring a new key employee: Have that employee affirm in writing that he/she: (a) does not possess any trade secrets acquired from any prior employer; and (b) will not share any trade secrets from any other employer. The new hire should also acknowledge in writing that you do not want him/her to divulge any trade secrets.

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