Wednesday, March 25, 2009, 3/25/2009 10:59:00 AM

The Trade Secrets of 9/11: Federal Court Considers Arguments Related to Sealed 9/11 Documents

By Todd

A Manhattan federal court will hear oral arguments today on whether more than a million pages of documents related to the Sept. 11, 2001 terrorist attacks should remain sealed.

Judge Alvin K. Hellerstein of the United States District Court in New York City will hear arguments from The New York Times and the Reporters Committee, as well as victims’ families and attorneys for the aviation industry defendants.

The documents come from lawsuits the families of certain Sept. 11 victims brought against airlines and related defendants. According to a statement from the plaintiffs’ attorneys, more than a million documents remain sealed by an overbroad protective order that allowed the defendants to unilaterally designate vast numbers of documents as containing confidential trade secrets.

Neither the victims’ families nor the media groups seek to unseal documents the government has classified as containing “Sensitive Security Information.”

Attorneys for the victims’ families seek to set aside the aviation defendants' designations of confidentiality, arguing that documents withheld as trade secrets include such important information as “whether the airport screeners’ magnetometers were working on 9/11; whether the screeners were qualified for their jobs in terms of language skills, citizenship, past criminal record and other factors; video footage of the hijackers going through airport security; and training manuals for screeners.”

While we haven't reviewed the briefs of the parties, we question the argument that "documents regarding whether airport screeners' magnetometers were working on 9/11" or information of that type constitutes a trade secret. Information about airport screening, qualifications for screeners, information about the screeners, training manuals for screeners - all dating back to practices and protocols in place in 2001 and before - is surely to have changed since then and as such is stale and provides no competitive advantages in the aviation defendants now or even when the suits were brought. As such, it is hard to see how a trade secrets defense to unsealing these items will prevail.

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