The Varying Scope of the Trade Secret Exception
By William J. O’Reilly
Introduction
Each of the three state data privacy acts taking effect in 2023 carve out an exception for data that can be considered a “trade secret”.[1]> At first blush any exception raises red flags, but this one may have a big enough impact to justify that trepidation. Many businesses could claim that collecting and making inferences about private data is their “trade”, making them exempt from a citizen seeking to exercise their rights. Further, Data Brokers—who should be the most limited by these laws—likely fit neatly into this exception. While the exact scope of the trade secret exception varies by state, past statutes and case law indicate the trade secret exception will fulfil privacy advocates’ fear. However, this can be an opportunity for judiciaries to change and protect citizen rights by interpreting such an exception narrowly, consistent with the respective legislature’s purpose. This narrow interpretation is necessary for the full protection of privacy rights.
