10/14/2014 07:57 pm ET Updated Dec 14, 2014

Social Media Connections Might Be Trade Secrets

A trade secret is nonpublic information that may provide a business an economic advantage over competitors. The categories of information constituting a trade secret may now include social media connections and followers. To constitute a trade secret the information must not be publicly known, actively kept secret by the business, valuable to the business and competitors and not easily duplicated by independent effort. Trade secret litigation in the past several years mentions social media such as LinkedIn and Twitter.

Historically, customer lists were frequently not considered trade secrets as they were easily duplicated with publicly available information. However, if the customer list contained unique information about purchasing patterns, etc. they could be trade secrets. A key factual question in social media trade secret litigation generally is if the information is publicly viewable and how difficult it is to duplicate from public sources. Password protected hidden information that is not easily reproduced is more like the traditional trade secret. Finally, does the applicable state trade secret statute include lists of names and addresses as protectable trade secrets?

A related issue in the case of a departing employee is the existence of a non-disclosure or confidentiality agreement and an assignment of intellectual property rights agreement. A non-disclosure agreement is a contract in which the employee agrees not to reveal information learned in the course of employment. A carefully written agreement could include a variety of social media along with the requirement that the employer be furnished functioning passwords or other means to access the information. An assignment of intellectual property rights agreement essentially states that items created by an employee in the scope of employment belong to the employer. Again, this could include social media accounts, contacts and connections.

From the employee's standpoint, it is essential to separate employment related social media contacts and personal or professional contacts. This separation may be difficult. Certainly at a minimum the information should not be stored on an employer-owned computer or cloud system.

The legal system and judges are just beginning to understand how new forms of social media function and their usefulness and value in business. Protocols, to the extent possible, should be easily related to traditional trade secret protection activities. Regardless, businesses should consider social media connections as valuable property worth protecting.