Originally published at: Pluralistic: 06 Apr 2022 – Pluralistic: Daily links from Cory Doctorow
- How trade secrets swallowed your right to know: A corporate veto over your environment, health, and civic duty.
- The Mormon Church owns the most valuable property portfolio in America: At least $15,700,000,000 in holdings.
- This day in history: 2002, 2007, 2012, 2017, 2021
- Colophon: Recent publications, upcoming/recent appearances, current writing projects, current reading
How trade secrets swallowed your right to know (permalink)
If you've never had a fight over the phrase "intellectual property," count yourself lucky, you normie, you. In the land of Free Software and Free Culture, "IP" is fightin' words.
Not unreasonably, mind you. "IP" was a deliberately ploy, undertaken by the world's largest, most aggressive corporations, who hated the existing terms of art, like "creators' monopolies." You can see why: it's hard to ask a legislature to strengthen your monopoly without provoking giggles, but "Help me defend my property"? That's an appeal to the American state religion.
IP bundles together a mismatched basket of legal concepts: trademark, copyright, patent, trade secrets, and weird and exotic beasts like "database rights" and "broadcast rights." Muddying these ideas is useful, because it makes it easier to bamboozle laypeople (to say nothing of making fools out of actual fucking idiots):
All this means that "IP" is a misleading, ideological concept that lacks the precision needed to have an adult conversation about policy, or justice, or business. It's like "family values" or "cultural Marxism" – an empty signifier used by unserious people for unserious purposes.
But a couple years ago, I had a revelation: in the context of global capitalism, IP has a precise meaning. When a business person says they have – or want – IP, what they mean is "any law, rule or standard that allows me to control the conduct of my competitors, critics and customers."
Once you start looking at IP debates through this lens, everything snaps into focus. Take "From Trade Secrecy to Seclusion," a new paper in Georgetown Law Journal by Berkeley Law's Sonia Katyal and Wilson Sonsini's Tait Graves:
Trade secrets are definitely the mutant chimeras of IP. The US didn't get its federal trade secrets law until 2016 (!), and while there's some uniformity in state trade secret laws, there's also some weird-ass outliers.
If you read a trade secrets law, it will probably strike you as reasonable, defining the right of firms to prevent the illegitimate disclosure of competitively significant, confidential information. And yet, as Katyal and Graves document in eye-watering, terrifying detail, trade secrets have quietly expanded and expanded until they were able to swallow accountability, public safety, and good government whole.
Again and again, judges have interpreted trade secrets laws in the broadest terms, with grave consequences for worker rights, the environment, good governance and the fundamental workings of the justice system.
The authors identify several factors that contribute to this: chief among them is that proving that a trade secrets claim is illegitimate is an expensive, arduous, fact-intensive process, which leads to "greater deference to secrecy."
Contrast this with patent and copyright, which require disclosure before they can be claimed. And unlike patents or copyrights, trade secrets don't need to be vetted by and registered with a government agency. Thus: "something is a trade secret because someone says so."
This has raises some obvious issues on its own, but it gets much gnarlier when you unpick the relationship between trade secrets and the public's right to know, through FOIA. FOIA contains an exemption for trade secrets, and that narrow exception has been widened by governments and corporations until it has all but swallowed the presumption of public access to the public's business.
Here's how that works: if a government or agency pays a private entity to provide a service – healthcare, say, or voting machines, or environmental cleanup – then that corporation can claim anything related to its public business as a trade secret, and thus private. This erosion of the right to know began with the passage of FOIA in 1966, but the advent of computers supercharged it, enabling vendors to claim that anything related to the software they sold the public was a trade secret.
This expansion of trade secrets has interfered with the public interest in myriad ways: "companies or government agencies use trade secrecy and confidentiality agreements to prevent investigations by journalists, employee-whistleblowers, research scientists, and private parties."
In many disturbing cases cited by the authors, trade secrets allowed government agencies and corporations to collude to cover up evidence of wrongdoing, like when the FDA and Merck conspired to use trade secrets claims to suppress information about the tens of thousands of lethal heart-attacks caused by Merck's FDA-approved drug Vioxx.
Trade secrets are a powerful tool for business hoping to avoid scrutiny of its shady conduct. For example, pharma and med-tech companies use trade secrets to stop state regulators from collecting information about how they price their products:
For polluters, trade secrets are a fantastic tool for ducking responsibility. For example, the EPA once answered a Sierra Club Clean Air Act request with 21,685 pages of documents – but they blacked out 18,000 of those pages.
When a business produces a new chemical, they have to file regulatory paperwork on it. Out of the past 18,000 chemicals disclosed to the US government, 95% of them were classed as trade secrets, meaning that even government scientists need clearance to study them.
Trade secret claims are on the rise across industry, from GMOs to synthetic fragrances, e-cigs, cosmetics, and flame retardants. Fracking chemicals are so secret that frackers don't have to disclose them to doctors treating people who've been poisoned by chemical spills.
SCOTUS poured gas on the trade secrets fire in 2019, when it ruled in Argus Leader, a case that expanded trade secrets to include any information that is "customarily treated as private" even if there is no showing of likely harm from disclosure. As the authors write, this could give companies "an unlimited veto power over FOIA requests."
And remember, companies do the public's business. Forty years of hollowing out of state capacity has left local, state and federal governments reliant on private companies to handle the normal business of public administration. Thanks to Argus Leader, companies that feed at the public trough don't have to let anyone oversee their work.
As noted, this goes double for software, and triple for "AI" software, which is used in all sorts of ways that can put people in harm's way, from determining where to send cops to whether to grant someone bail to whether to take away someone's kids.
Trade secrets are an easy reach for software vendors who don't want to disclose their workings to the public. In People v. Chubbs, an accused murderer facing the death penalty was denied the right to examine TrueAllele software from Cybergenetics that was used to lock him up. That set a precedent that "source code is proprietary and therefore essentially immune from investigation by the defendant."
Just to be on the safe side, some cops deliberately avoid "taking possession of [vendors'] source code in order to assist prosecutors and avoid turning the code over to defense counsel and its expert."
The new hotness in using trade secrets to avoid accountability is businesses that claim their salaries and workforce demographics as trade secrets. This has become a neat way to do an end-run around rules that ban employers from insisting that workers keep their wages secret, and other rules that require disclosure of the ethnic and gender breakdown of workers.
This gambit was greenlit by the Trump Administration in 2019, in a case where employers (successfully) argued that disclosing how many workers were maimed or killed in their facilities was a trade secret.
Can we fix this? The authors think so. They argue that expansion of trade secrets is the result of specialist lawyers who argue both sides of trade secret cases, and thus are disincentivized from pushing back too hard against expansive interpretations of the law.
In the final third of the paper, they offer a selection of – wonky and legally esoteric, but fascinating – legal arguments that smart lawyers could use to push back against trade secret's metastasis.
For example, they say that many companies lack standing to bring trade secret claims, unless they can show that they "own or license" the information in question. So when a company claims that the racial makeup of its workforce is a trade secret, a smart counter would be to demand how this could be, given that all the workers know their own racial identities.
They say this could extend to "an environmental violation or other legal wrongdoing." The wrongdoing "cannot be bought or sold, or licensed, on any commercial market," which could exclude it from trade secret claims.
Companies often claim that collected public facts can become a "compilation," eligible for trade secret protection. But the authors say that when this can't be applied to workplace injury data (as the US government did in Ctr for Investigative Reporting v. US DOL). Compilations are eligible for trade secret protection when they are a "unified process." A list of all your maimed workers is not a "unified process."
The authors urge plaintiffs to push companies to "define what, in precise terms, they claims to be a trade secret on an item-by-item basis," saying this "could go a long way in defeating such assertions."
They also point out that both federal and state trade secret laws provide for penalties for "bad faith" invocations of trade secret, eg to prevent former employees from competing.
They also cite Deepa Varadarajan's proposal for a "fair use" for trade secrets, based on 5 factors:
I. purpose of the use
II. nature of the trade secret
III. how much the secret the defendant took
IV. effect of use on the owner
V. appropriateness of a reasonable royalty
Beyond fair use, they cite David Levine's proposal to ban "trade secret protection for FOIA exemptions as well as requiring these entities to show that they act as market competitors in the private sector."
I think there's one more proposal, which is that government should extract binding promises from firms doing business before it – contracting to provide services, submitting for regulatory appeal – not to use trade secret to frustrate FOIA requests or other public interest purposes.
The Mormon Church owns the most valuable property portfolio in America (permalink)
More than five years ago, the MormonLeaks organization was founded to investigate and reveal corruption within the Latter Day Saints Church, from gender bias to financial transparency. After weathering baseless legal attacks from the church, the organization redoubled its efforts, changing its name to Truth and Transparency and expanding its remit to all organized religion.
In its latest report, Truth and Transparency chip away at the LDS Church's financial opacity, revealing 15,963 parcels (1,754,633 acres)of property holdings across the USA, with a minimum value of $15.7 billion.
Truth and Transparency was able to do this sleuthing thanks to a failure in the Church's secrecy methods. While examining the records of known Church holdings, researchers noticed that each one of these properties was tied to a common address, no matter which holding company or other entity nominally owned it.
By feeding this address into Reonomy's database of commercial US properties, they were able to pull up a massive data-set of suspected LDS properties. They hand-verified all properties valued at more than $20m, and another 1,000 randomly selected lower-value properties, confirming that they were all owned by the Church.
This makes the Church property portfolio the most valuable land-holdings in the USA, and they've only scratched the surface. The Reonomy database does not include residential properties, and it's possible that the Church has properties that aren't linked to the common address the researchers used to compile their data.
Truth and Transparency's report includes an interactive map that lets you explore the Church's properties. As they say the experience "can be jarring." They have also published their full data-set:
This day in history (permalink)
#20yrsago Google will have an API https://slashdot.org/story/02/04/06/1354223/google-to-offer-api
#15yrsago Gay fairy-tale weddings come to Disney World https://web.archive.org/web/20070408103825/https://www.foxnews.com/story/0,2933,264423,00.html
#10yrsago MPAA boss: we’re cooking up a new SOPA behind the scenes https://www.techdirt.com/2012/04/05/chris-dodd-suggests-backroom-negotiations-new-sopa-are-well-underway/
#10yrsago WIPO caught secretly funneling cash to North Korea to buy patent database computers https://www.foxnews.com/world/exclusive-cash-for-computers-is-the-u-n-busting-its-own-sanctions-in-north-korea
#10yrsago London’s Overthrow: China Miéville’s love poem and lament for London http://www.londonsoverthrow.org/onepage.html
#5yrsago Poisoned wifi signals can take over all Android devices in range, no user intervention required https://arstechnica.com/information-technology/2017/04/wide-range-of-android-phones-vulnerable-to-device-hijacks-over-wi-fi/
#5yrsago Uber threatens to leave Seattle if drivers can unionize; drivers rejoice https://www.theguardian.com/technology/2017/apr/05/uber-drivers-union-seattle-legal-battle
#5yrsago Having a job in America means being subjected to continuous, intimate surveillance https://www.vocativ.com/414570/workplace-spying-surveillance-dystopia-we-work-in/
#5yrsago Vast majority of Americans reject mass surveillance to thwart terrorist attacks https://www.reuters.com/article/us-usa-cyber-poll-idUSKBN1762TQ
#5yrsago Arduino’s new CEO has spent years pretending to have an MIT PhD and an NYU MBA https://www.wired.com/2017/04/arduinos-new-ceo-federico-musto-may-fabricated-academic-record/
#1yrago Ad-tech's algorithmic cruelty https://pluralistic.net/2021/04/06/digital-phrenology/#weaponized-nostalgia
#1yrago The real cancel culture: Multiple-choice union-busting https://pluralistic.net/2021/04/06/digital-phrenology/#digital-phrenology
#1yrago Podcasting How to Destroy Surveillance Capitalism https://pluralistic.net/2021/04/06/digital-phrenology/#htdsc
Today's top sources:
- Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. Yesterday's progress: 514 words (80190 words total).
A Little Brother short story about DIY insulin PLANNING
Vigilant, Little Brother short story about remote invigilation. FIRST DRAFT COMPLETE, WAITING FOR EXPERT REVIEW
Moral Hazard, a short story for MIT Tech Review's 12 Tomorrows. FIRST DRAFT COMPLETE, ACCEPTED FOR PUBLICATION
Spill, a Little Brother short story about pipeline protests. FINAL DRAFT COMPLETE
A post-GND utopian novel, "The Lost Cause." FINISHED
A cyberpunk noir thriller novel, "Red Team Blues." FINISHED
Currently reading: Analogia by George Dyson.
Latest podcast: The Byzantine Premium
- Surveillance Capitalism, Borders, and the Police (San Diego DSA), Apr 14
Seize the Means of Computation, Emerging Technologies For the Enterprise, Apr 19-20
UK Competition and Markets Authority Data Technology and Analytics conference, Jun 15-16
- Creative Commons Open Minds Podcast:
Initiative for Public Digital Infrastructure Podcast
The Bitcoin Podcast:
- "Attack Surface": The third Little Brother novel, a standalone technothriller for adults. The Washington Post called it "a political cyberthriller, vigorous, bold and savvy about the limits of revolution and resistance." Order signed, personalized copies from Dark Delicacies https://www.darkdel.com/store/p1840/Available_Now%3A_Attack_Surface.html
"How to Destroy Surveillance Capitalism": an anti-monopoly pamphlet analyzing the true harms of surveillance capitalism and proposing a solution. https://onezero.medium.com/how-to-destroy-surveillance-capitalism-8135e6744d59 (print edition: https://bookshop.org/books/how-to-destroy-surveillance-capitalism/9781736205907) (signed copies: https://www.darkdel.com/store/p2024/Available_Now%3A__How_to_Destroy_Surveillance_Capitalism.html)
"Little Brother/Homeland": A reissue omnibus edition with a new introduction by Edward Snowden: https://us.macmillan.com/books/9781250774583; personalized/signed copies here: https://www.darkdel.com/store/p1750/July%3A__Little_Brother_%26_Homeland.html
"Poesy the Monster Slayer" a picture book about monsters, bedtime, gender, and kicking ass. Order here: https://us.macmillan.com/books/9781626723627. Get a personalized, signed copy here: https://www.darkdel.com/store/p1562/_Poesy_the_Monster_Slayer.html.
- Chokepoint Capitalism: How to Beat Big Tech, Tame Big Content, and Get Artists Paid, with Rebecca Giblin, nonfiction/business/politics, Beacon Press, September 2022
This work licensed under a Creative Commons Attribution 4.0 license. That means you can use it any way you like, including commercially, provided that you attribute it to me, Cory Doctorow, and include a link to pluralistic.net.
Quotations and images are not included in this license; they are included either under a limitation or exception to copyright, or on the basis of a separate license. Please exercise caution.
How to get Pluralistic:
Blog (no ads, tracking, or data-collection):
Newsletter (no ads, tracking, or data-collection):
Mastodon (no ads, tracking, or data-collection):
Medium (no ads, paywalled):
(Latest Medium column: "When Automation Becomes Enforcement" https://doctorow.medium.com/when-automation-becomes-enforcement-677461a78e62)
Twitter (mass-scale, unrestricted, third-party surveillance and advertising):
Tumblr (mass-scale, unrestricted, third-party surveillance and advertising):
"When life gives you SARS, you make sarsaparilla" -Joey "Accordion Guy" DeVilla