ColumnEscape From the Law

What Happens to Trade Secrets in a World Where Professor X & Mind Reading Are Real?

mind read mind reading legal law implications for trade secrets Escape from the Law

One of the most interesting narrative devices in science fiction stories is mind reading. Some of the more prominent uses of mind reading in recent years have included Star Wars, Inception, and X-Men, though there are many others. This week, I’ll consider how the law would handle secrets in a world where mind reading, telepathy, and thought-stealing are commonplace. In particular, I will consider how the law would handle trade secrets.

The law of trade secrets provides special protection to business secrets. The protections are fairly straightforward — the owner of a trade secret can use the legal system to prevent others from using the trade secret or, if the secret has already been misappropriated, to recover losses from the disclosure of the secret or to obtain the thief’s ill-gotten profits.

In order for information to qualify as a trade secret, it has to satisfy two requirements — it has to have “independent economic value … from not being generally known,” and the owner must have “taken reasonable measures to keep such information secret.” As one court stated, “it is axiomatic that without secrecy, no trade secret can exist.”

mind read mind reading legal law implications for trade secrets

The keyword in that definition is “reasonable.” In our current mind control-free world, “reasonable measures” has a fairly straightforward meaning. In order to benefit from trade secret protections, businesses have to implement specific “secrecy measures.” These measures typically include things like non-disclosure agreements (NDAs), storage protocols, and access control. For example, if one has a trade secret in a design schematic, then it would be reasonable to implement protocols to ensure that only authorized personnel have access to the schematic and to ensure that each authorized person signs a non-disclosure agreement. Likewise, it would be unreasonable to post the schematic on a public server or to provide a copy of the schematic to a potential competitor.

Enter mind reading. In a world where anyone’s thoughts can be probed and scanned, our understanding of “reasonable” would understandably change. The specific outcome would depend on the version of mind control that we’re dealing with, as well as the prevalence of mind control in society.

Option One: Nothing Changes

It can hardly be disputed that mind reading is incredibly invasive. A mind reader can access or probe people’s deepest thoughts without permission and, potentially, without notice. In this sense, we can say that reading someone’s mind is roughly analogous to hacking someone’s computer or breaking into someone’s home. As far as trade secrets are concerned, that would mean that obtaining a trade secret through mind reading would simply be viewed as a new method of stealing and would not require any change in how secrets are actually protected or maintained. In other words, the existence of mind reading might not meaningfully change how the law views trade secrets. At most, companies would be expected to add a provision to their NDAs prohibiting employees from voluntarily submitting themselves to mind reading.

Some depictions of mind reading include the concept of “psychic barriers” or other defenses that can block mind readers, or at least make it difficult for mind readers to access secrets. If those kinds of defenses existed, then companies would be required to use psychic defenses to protect their trade secrets. A failure to provide psychic barriers would essentially be the same as failing to use locks on the door to the room containing the trade secret.

mind read mind reading legal law implications for trade secrets

Option Two: Bunker the Scientists

In a world where mind reading is ubiquitous, or where the process of mind reading is involuntary, social norms and expectations might change and create an environment where mind reading is viewed as inevitable. In that world, the only way to reliably keep a secret would be to prevent potential mind readers from accessing (voluntarily or otherwise) the minds of secret-carrying individuals. In a world with lots of mind readers, the only reliable way to do this would be to distribute sensitive information across multiple individuals (if possible) or to keep secret-carrying individuals away from society at large. While this is a pretty extreme solution, in a world where mind reading is commonplace, it would be one of the only sure ways to keep secrets.

Option Three: No Secrets

If you think that requiring companies to house their entire R&D division in an isolated bunker is absurd, you’re not alone. Instead of going to such great lengths to keep information secret, society might just decide to give up on secrets (or at least trade secrets) in their entirety. In a world where mind reading is everywhere, or where mind reading is automatic and unavoidable, the concept of secrets — including trade secrets — doesn’t really make sense.

Because a world of mind readers is so different from the current world, it’s hard to imagine what a “mind readers everywhere” society would look like. As an example, consider the criminal justice system. In a world where you can access anyone’s thoughts at will, the Fifth Amendment right against self-incrimination doesn’t make any sense. Similarly, the right to be free from unreasonable searches also takes on reduced importance, since most of the information one would want to search for would be accessible with a simple glance. Outside the legal sphere, lying would become a thing of the past, necessitating a monumental change in all of our social and professional interactions.

mind read mind reading legal law implications for trade secrets

Needless to say, in a “mind readers everywhere” society, trade secrets would barely be a topic of conversation. Companies would inevitably rely more on patents to protect their inventions than on trade secrets. Unlike trade secrets, patents don’t lose their protections if they are disclosed to the public. To the contrary, public disclosure is an essential component of obtaining a patent.

Closing Thoughts (No Mind Reading Necessary)

The law has an interesting relationship with secrets. On its face, the law purports to comply with one’s “reasonable expectations” of privacy and secret keeping. The problem, though, is that the law’s understanding of “reasonable” doesn’t always align with traditional expectations. On one hand, the law provides tremendous respect to secrets associated with “special” relationships. For example, secrets between attorneys and clients, doctors and patients, and husband and wife are generally protected. On the other hand, the law is quick to dismiss pretty much every other category of secrets, and it provides virtually no legal protections for information stored in your Gmail account, or even for secrets shared between best friends.

When it comes to trade secrets, though, the law is straightforward — at least in theory: Secrecy is good. The more mechanisms one uses to protect their trade secret, the harder it will be for one’s adversary to challenge the legitimacy of the trade secret protections. Thus, it is not surprising to see that mind reading — which is a natural enemy to secrets — spells nothing but trouble to trade secrets and to the legal infrastructure on which trade secrets are built. In a world with just a handful of mind readers, or where one can establish mind reading defenses, trade secrets can survive. But if there are too many mind readers, then trade secrets (and every other kind of secret, for that matter) will cease to have any legal relevance.

And those are my thoughts on the matter.

About the author

Adam Adler
Adam is a lawyer, comic book fan, and stand-up comedian based in Washington, D.C. Adam has been writing Escape the Law since 2018 to explore the intersection of law with comic books, movies, and video games. From time to time, Adam also provides game reviews and commentaries. By day, Adam is an attorney specializing in intellectual property, technology, and comic book law. For example, Adam represented a comic book author in a trademark dispute against DC Comics, which claimed to have the exclusive right to use the word “Super.” Adam is also at the forefront of disputes regarding deepfake technology, copyrights, and patents. Adam obtained his law degree from Yale Law School in 2015 and obtained a B.S. in Mathematical & Computational Science from Stanford University in 2012. Feel free to contact Adam via e-mail at [email protected]