Abstract
Trade secret protection is granted by the government to provide entities with an actionable right against the theft and misuse of their secrets. The government provides this protection to compensate for wrongful acts of competitors. However, the lack of checks on trade secret protections has instead provided a pathway for private entities to hide harmful information from the public.
From water usage in a drought area to using toxic chemicals for fracking, there are countless examples of trade secret abuses. While not every use of trade secret protection is malicious, awarding unchecked trade secret protection can still have grave consequences. Recently, these consequences were most notable during the COVID-19 pandemic response when pharmaceutical companies used trade secret laws to prevent low- and middle-income countries from developing their own COVID-19 vaccines and treatments.
This Comment explores a brief history of trade secret legislation in the United States, with a focus on recent challenges surrounding the invocation of trade secret protections. This illuminates the frequent exemptions of trade secrets from conventional obligations to provide information to the public, revealing a critical gap in essential knowledge concerning public health and safety. Then, this Comment proposes a new legal framework that will require private entities to provide certain information to the public on request. This proposed framework is modeled after the Freedom of Information Act (FOIA) and utilizes many of the same procedures and mechanisms. However, unlike FOIA, this framework weighs heavily in favor of disclosure, ensuring the public will get information—such as drug efficacy— needed to make decisions and hold private entities accountable for impacts on public health and safety without completely removing trade secret protections. Finally, this Comment proposes incentives that can be offered to private entities, including increased patent protection and tax benefits. Trade secret protections are rooted in tort law against unfair competition; trade secret law was never meant to protect companies from public scrutiny. This Comment puts the balance back in the public’s favor.
Recommended Citation
Maranda L. Johnston,
The Right to Know: Putting Public Health and Safety Above Trade Secret Protections,
74
Emory L. J.
157
(2024).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol74/iss1/4