What started out last fall as a story one brick shy of being interesting has a chance of turning into a landmark court decision. The plot was simple: high-energy, high-profile boss at company A bolts for the bright lights, big bucks, and BMWs of rival company B. While Silicon Valley personnel moves are, on the whole, pretty boring stuff (unless, of course, you're the one on the move), everyone still got a chuckle when Gene Wang bolted from Borland to Symantec--everyone with the possible exception of Philippe Kahn, that is. What goes around comes around, those with good memories said, remembering the brouhaha over Rob Dickerson's leap from Microsoft to Borland a couple of years back.
After a few days though, the story showed signs of life with the news that a posse including the Santa Cruz County district attorney and FBI was poking around, search warrants in hand. Among the tidbits they reportedly found was a passel of MCI electronic-mail messages from the still-Borland-employee Wang to Symantec CEO Gordon Eubanks detailing what Borland claimed was some of its innermost secrets. Almost immediately, Borland filed a lawsuit against Symantec. More recently, a Santa Cruz County grand jury indicted Wang on 21 counts of violating trade-secret laws, and Eubanks on 11 counts of receiving stolen property and conspiracy to misuse Borland trade secrets.
While it's high time for the courts to tackle one aspect of the case that's in the spotlight--that of privacy and electronic communication--the subject may never come up. Instead, the judge and jury will first examine the murky waters of trade secrets. If privacy raises its head at all, it'll be as a means of appeal if Eubanks and Wang are found guilty.
The trade secrets issue will be a tough enough nut to crack and, if the district attorney prevails against Symantec, the definition of a trade secret will be rewritten to some degree. Although the details are sealed as of this writing, affidavits filed by Borland indicate that data Wang passed on included product design specs and features, sales stats, and so forth--information the district attorney says is worth "hundreds of thousands of dollars." Under California criminal law, however, a trade secret is limited to information that's scientific and technical in nature. Civil statutes, on the other hand, more broadly define trade secrets to sometimes include marketing information. Eubanks seems to have acknowledged the distinction between civil and criminal definitions of trade secrets when he was recently quoted as saying, "there are no criminal trade secrets here."
If the court rules in Symantec's favor, you won't see any sweeping redefinition of trade secrets, and electronic privacy issues will remain muddied. While the 1986 Electronic Communication Privacy Act covers e-mail privacy across public networks, it doesn't address in-house corporate situations like the Borland/Wang case. In this instance, Borland presumably provided Wang with the MCI mail account, gave him a password, and paid his e-mail bill, just as with his telephone. Most companies accept that employees will attend to some personal business during the workday, whether at the water cooler or over the phone, fax, or e-mail. The question, then, centers on who owns the conversations or messages electronically transmitted. Certainly the employer must have access to company-related information in the employee's files (electronic or paper) that are important to the smooth operation of the business. But at the same time, employees should be able to assume an implied sense of privacy in their work environment.
If the criminal charges against Eubanks and Wang are upheld, the court may still get into the privacy thing. The issue then shifts to whether or not the information Borland uncovered can be used against Wang, not whether or not the company had the right to examine his files.
Someday we'll get some clear-cut legal guidelines concerning e-mail privacy ... someday, but probably not someday soon.
Last month, I briefly mentioned the Library of Congress's petition to start charging the general public for computer access to public information stored at the library. Since then, the GPO Access bill has come to light. This bipartisan proposal would require the Government Printing Office (GPO) to provide some federal records online, charging for the cost of distribution--but not for collecting--the data.
That's the good news. The bad news is that the bill would also continue to let executive branch departments negotiate exclusive deals with private companies to distribute for profit publicly owned information collected at taxpayer expense.
What's interesting is that GPO Access applies to only those departments under the control of Congress. The departments exempt from the public-access components of GPO Access--the Justice Department, Health and Human Services, and the like--are under the umbrella of the Executive Branch. As part of their high-tech policy, Clinton and Gore have committed to providing as much information to as many people as possible and open access to public information is central to the Information Highway they're proposing. Looks like another fish or cut bait time for the Prez.
Copyright © 1993, Dr. Dobb's JournalInformation Access Update