The COVID-19 pandemic presents unique and unprecedented challenges to the ongoing need to protect confidential information and trade secrets. With entire workforces working remotely, employees are increasingly relying on video services to remain connected, but the increasing prevalence of video services does not come without problems. For example, Zoom Video Communications Inc. (“Zoom”) is a videoconferencing app which allows multiple people to be in the same “virtual room” at once and which has seen an uptick of users since the COVID-19 crisis. While Zoom permits employees to remain in contact, it and other video services also permit employees to use and share confidential information and trade secrets from their home. Now more than ever companies need to be extra vigilant in what platforms they allow their employees to use and how their employees use the platforms.
A trade secret holder must take “reasonable measures” under the circumstances to protect its trade secrets, including evaluating the potential risk that arises when using a particular platform. This is extremely important with video platforms like Zoom, which explicitly notes in its user agreement that Zoom stores all recordings for “any or all Zoom meetings.” The government of Taiwan, Elon Musk’s SpaceX, and New York City’s Department of Education have all banned the use of Zoom based on the belief the app is not secure enough. Others have alleged that “uninvited trolls” have gained access to video conference calls due to Zoom’s encryption technology and that recordings of meetings have also shown up on public internet servers.
Given these potential technological loopholes, and the possibility that an unauthorized person could possibly gain access to a company’s confidential information and/or trade secrets through a video provider such as Zoom, a trade secret holder may need to take more stringent measures to protect their trade secrets when using video platforms. Those could come in any number of forms – for example, an explicit written directive to employees not to share or discuss such trade secret or other confidential information over the video platform. There are likely other measures, but absent any such “reasonable measures,” a company could potentially lose a trade secret if a court finds that by using a particular platform that had known security risks; the company didn’t take reasonable measures to protect its trade secret.