Black Hats and White Hats: Not Everything Is Confidential

(Part Five in a Series)

Remember the story about the boy who cried wolf? He tried to manipulate others by falsely claiming that a wolf threatened the town. Though the townspeople were fooled the first few times he raised the fraudulent alarm, they quickly became weary of his charade and began ignoring him. When he faced a true crisis, no one paid any attention to him.

Black Hats cry wolf relentlessly and incessantly. In the world of the Black Hats, everything about their business is Confidential (with a capital “C”) and subject to protection. Give them a “Confidential” stamp and an ink pad, and they can amuse themselves for hours, maybe even days. No piece of information is too insignificant to avoid their grasp.

The truth is that while your business may rely on vast amounts of important information, most of that information does not meet the legal definition of trade secret or confidential information.

White Hats recognize that most of their information — though important — does not warrant protection as a trade secret or confidential information. While Black Hats try to identify as much as they can as “trade secret,” White Hats realize that they need to focus on the information that truly is protected.

Before you identify something as “confidential” or “trade secret,” take care to specifically identify why the information should be protected. Don’t overreach. In consultation with your legal counsel, identify why your information should be protected. Thoroughly document your efforts, and take appropriate steps to secure and protect your information.

If you cannot articulate a coherent reason why the information is subject to protection, you won’t be able to identify a reason when the information has walked out the door with a disloyal former employee. If, when you pitch your case to a judge, you cannot meet your burden of proof, you will be like the boy who cried wolf. By crying “trade secret” when no secret exists, you will annoy the judge and minimize the importance of your truly valuable information.

Not everything is confidential or trade secret. Wear a White Hat. Carefully and specifically identify the true trade secrets and confidential information in your business, then work aggressively and relentlessly to protect that information.

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