ABSTRACT :: Trade secrecy-the intellectual property doctrine that allows businesses to keep commercially valuable information secret for a potentially unlimited amount of time- is increasingly intruding in the operation of our public infrastructure, including voting machines, the Internet, and telecommunications. A growing amount of public infrastructure is being provided by private entities that are holding critical information about their goods and services secret from the public. This Article examines this phenomenon, which is largely unexplored in legal scholarship, and identifies a significant conflict between the values and policies of trade secrecy doctrine and the democratic values of accountability and transparency that have traditionally been present in public infrastructure projects.
This Article argues that trade secrecy must give way to traditional notions of transparency and accountability when it comes to the provision of public infrastructure. Although there are good reasons for trade secrecy in private commerce, when applied to public infrastructure, the basic democratic values of transparency and accountability should prevail. The application of trade secrecy doctrine to public infrastructure projects causes some unanticipated outcomes, like hiding information that could be useful for both the public at large and for the improvement of the specific infrastructure project at issue. This Article examines the background and history of trade secrecy and contrasts its values with those of democratic government. It then shows the increasing impact of trade secrecy on public infrastructure through three examples. Finally, the Article suggests some potential remedies to this sphere of increasingly conflicting values.
March 2015, Vol. 67, No. 2
Albert W. Alschuler, Limiting Political Contributions After McCutcheon, Citizens United, and SpeechNow
Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness
Jeffrey A. Lefstin, Inventive Application: A History
Onnig H. Dombalagian, Principles for Publicness
Kristen M. Blankley, Impact Preemption: A New Theory of Federal Arbitration Act Preemption
Alan Devlin, Antitrust Limits on Targeted Patent Aggregation