In order to maintain my license and remain an attorney in good standing in the State of New York, I’m required to attend 24 hours of continuing legal education (CLE) every two years. After 25 years practicing law, it’s become increasingly challenging (and this past year, a scramble) to find interesting and reasonably priced classes for me to certify to this requirement.
In light of the recent media panic over FaceApp regarding privacy concerns and the release of personal data to the Russians, I was enthusiastic to attend a CLE entitled “Protecting Confidentiality and Trade Secrets and the Perils of Social Media.” While the loss of personal privacy was disappointingly not covered, learning about the protection of confidential information in the corporate setting is valuable to my practice. I often draft and negotiate Confidentiality and Non-Disclosure Agreements (NDAs) on behalf of my corporate clients.
Nevertheless, since the beginning of the digital age, I’ve had questions with respect to the protection of customer/client lists. This class provided me a terrific opportunity to get the perspective of NY litigators in 2019 regarding the current status of protecting confidential information in the age of Outlook and LinkedIn — which allow “contacts” and other information to be portable when an employee leaves a company.
I learned that a protectable customer list must include more than general contact information. It should be a list that provides information about the relationship between the customer and the company, such as customer preferences. But what constitutes “general contact information” in a world with Facebook and LinkedIn?
I also learned that corporations are no longer trying to limit the personal use by employees of their company-owned computers, as this was just not practical. Nevertheless, social media accounts created or used by employees on behalf of the company are considered to be the property of the company, including the followers, the contacts and the content. But, what does it mean to call the followers and contacts of a company’s social media account the company’s property if an employee’s Outlook and LinkedIn contact lists are considered portable personal property?
Before LinkedIn, knowing someone’s professional and educational history, among other things, required having a direct personal connection. Diligent employees may have noted this type of information in their Rolodex. Today, this and other information is available to everyone in the universe. LinkedIn helped develop customer and other relationships by skipping a step or two in the connection making process. I question whether a company could assert a successful claim to ownership of an employee’s LinkedIn contacts if the list of connections consists solely of customers of the company.
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