Data Mobility at the Intersection of Data, Trade Secret Protection and the Mobility of Employees in the Digital Economy

Abstract

The technological tools that are available in the digital economy have expanded the possibilities of private companies to collect online data. In fact, many business models online depend on the processing of data. Yet, the myriads of data flowing on the Internet first of all raise the need to categorize different types of data (e.g. personal v. non-personal). The latter is important not only in terms of the scope of their legal protection, but also for the intersection of data and trade secrets. Clarifying the relationship between data and trade secret protection may be, in particular, relevant in the digital multi-sided platforms, the functioning of which is based on the flow of data. If access to data is hindered by claiming that particular information is covered by a trade secret, platform competition could be affected. Indeed, the dispute whether the employer can claim the credentials of a social media account as a trade secret in case of a departing employee arose in PhoneDog v. Kravitz. Although the case was decided in the U.S., the problem of access to digital data is not limited to a particular jurisdiction. The question, which needs to be analyzed deeper, is what effects trade secrets may have on access to data in the digital economy and what solutions could be provided for preserving both data flow on the Internet and employee mobility.