Saturday, August 27, 2022

Christopher Morten: Do Federal Agencies Have More Power To "Break" Corporate Secrets Than We Thought?

The prevailing wisdom is that federal agencies cannot generally disclose trade secrets and confidential information given to them in confidence by companies that they regulate or work with.  Indeed, the Trade Secrets Act (18 U.S.C. § 1905), passed in 1948, seems on its face to make it a crime for federal government personnel to do so.

However, in a highly provocative, but ultimately compelling article, "Publicizing Corporate Secrets," forthcoming in the University of Pennsylvania Law Review, Christopher Morten of Columbia Law School argues that federal agencies have much more power to publicly disclose trade secrets than is commonly believed. Morten argues that the scope of agencies' power to disclose is defined by their enabling statutes and that, with many important exceptions, several of these enabling statutes do not, at a legislative level, prohibit disclosure of trade secrets or confidential information. Some agencies may have regulations on the books preventing disclosure of trade secrets, but he suggests that they could in some cases change those regulations without additional authorization from Congress, and that there would be far fewer negative consequences for them than we might think if they did so.  

On a very hot day in July, I interviewed Morten about the details of his argument.  The interview took place in the air-conditioned NYU Engelberg Center. Many thanks to Katrina Southerland and Mike Weinberg for arranging a space for us.  This was a fascinating, lengthy discussion, which I have excerpted below.