In their forthcoming Berkeley Technology Law Journal article (alternative link), visiting University of Maryland Associate Professor of Law Davida Isaacs and University of Kentucky Assistant Professor of National Security Robert Farley discuss the Military and State Secret Privilege and its negative impact on innovation, the discovery process, and government procurement. As previously noted on this blog, the counties surrounding Washington, D.C., are home to many government contractors, possibly triggering use of the privilege.
In the article, Isaacs and Farley review the Federal Circuit's Crater Corp. v. Lucent Techs., 423 F.3d 1260 (Fed. Cir. 2005), cert. denied, 547 U.S. 1218 (2006), case in some depth, suggesting that there are some troubling constitutional issues regarding the assertion of the privilege, and arguing that widespread use of the privilege could have a significant negative effect on military innovation and procurement. On the former point, where the information involved constitutes “trade secrets”, the authors point out that effective quashing of litigation through invocation of the privilege arguably amounts to an unconstitutional taking. On the latter, the authors note that loose use of privilege endangers the intellectual property rights of companies interested in doing business with the military, and in particular of small companies that cannot depend either on their connections with the Pentagon or on an expectation of repeat business for protection. (This is particularly problematic given the stated interest of the Pentagon in pursuing non-traditional defense contractors for innovative technologies.)
The Military and State Secrets Privilege has been receiving an enormous amount of attention lately, write Isaacs and Farley. As the article also notes, just a few months ago Congress proposed legislation that is meant to rein in the Government’s use of the privilege, or at least encourage independent judicial consideration of the privilege’s application. But, the authors argue, particularly with regard to the use of intellectual property, this legislation still does not go far enough in ameliorating the negative effects described above.
- Cite: D. Isaacs and R. Farley, Privilege-Wise and Patent (and Trade Secret)-Foolish?: How the Courts’ Misapplication of the Military and State Secrets Privilege Violates the Constitution and Endangers National Security; 23 Berkeley Tech. L.J. __ (2009) (forthcoming).
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