Reasonable Efforts to Maintain Secrecy – Learning from the Bad Experiences of the Brits

Virtually every trade secrets statute in the U.S. requires the owner of a trade secret to take “efforts that are reasonable under the circumstances to maintain its secrecy.”

Yet there’s not a lot of guidance about what that means or what is required.

Well, we now have a good answer for what is not a reasonable effort. Last week, British counterterrorism official Bob Quick (pictured here) was fired for allowing a Top Secret document containing information regarding an investigation of an Al-Qaeda terror cell to be photographed as he entered 10 Downing Street.

That got us thinking about some places for guidance.

One source that courts might well consider authoritative is the U.S. government’s own regulations regarding the handling of secret information. These are found at 32 CFR Parts 2001 and 2004 from the National Archives and Records Administration and they are quite extensive.

Among other things, they describe in detail how classified information is to be classified, marked and safeguarded.

Here’s how the U.S. regulations deal with Mr. Quick’s problem:

All classified information physically transmitted outside facilities shall be enclosed in two layers, both of which provide reasonable evidence of tampering and which conceal the contents. The inner enclosure shall clearly identify the address of both the sender and the intended recipient, the highest classification level of the contents, and any appropriate warning notices. The outer enclosure shall be the same except that no markings to indicate that the contents are classified shall be visible.

In considering the appropriate efforts for protecting trade secrets, company’s might look to the government’s regulations as a good place to start.