In a blog post published in Written Description, Camilla Hrdy engages with the framework posed by Professor Courtney Cox in her forthcoming article on trade secret law.
Courtney Cox, a professor at Fordham University Law School, has a very interesting trade secret law article forthcoming in George Washington Law Review called “Legitimizing Lies.” The article can be downloaded on SSRN.
Cox argues, in short, that trade secret law could generate an unexpected incentive for trade secret holders to “lie.” The reason is that federal and state trade secret statutes require anyone who wishes to own a trade secret to take “reasonable” measures to keep that information secret, and in some instances deception—including deception effectuated by lies—may be the most reasonable way to keep something secret. For example, companies sometimes use “deception technology” in their cybersecurity systems “to trick hackers into thinking they are getting close to critical data.” (25). Cox highlights increasing use of a cybersecurity device, affectionately called the “honeypot,” which operates as a decoy computer system that can lure away would-be hackers. (24).
Cox suggests that, to the extent deception-based information security becomes the most effective option for protecting secrets in a certain industry or context, then trade secret law may require taking that deceptive act. This is because the trade secret statutes, at the federal and state level, include taking “reasonable” measures to preserve secrecy as a necessary element of a plaintiff’s trade secret case. Thus, the law encourages, or at least gives its blessing, to “lying.”