Agriculture Big Data Legal Issues and Protections: Part 6 – Possible Legal Protections

Written by M. Sean High – Staff Attorney

Contract Protections

The contract between a farmer and an agricultural Big Data company provides the first line of defense for any farmer seeking to determine how their agricultural information may be used. 

As with all contracts, it is important to understand the contractual terms prior to signing the agreement.  Once the contract is signed, the farmer will be bound by the terms of the agreement. 

If a farmer has certain concerns regarding how their agricultural information will be used, those concerns should be spelled out in the contract.  For example, a farmer could specifically prohibit agricultural Big Data companies from providing commodities traders or rival farmers with their individual agricultural information.  If an agricultural Big Data company were to violate such an agreement, the farmer would have the ability to seek damages for a breach of contract.

Pennsylvania Trade Secrets Law

Many farmers worry about unauthorized individuals gaining access to their individual agricultural information.  A statue that could possibly offer protection to Pennsylvania farmers’ is the Pennsylvania Uniform Trade Secret Act (PUTSA) (12 Pa.C.S.A. §§ 5301-5308). 

Enacted in 2004, PUTSA defines a trade secret as information that has economic value from not being generally known and that the owner of the information takes reasonable steps to maintain the secrecy of the information (12 Pa.C.S.A. §5302).  PUTSA makes it a crime for anyone to “misappropriate” a trade secret through improper means or to disclose or use a trade secret without the consent of the owner (12 Pa.C.S.A. § 5302).  If a trade secret is misappropriated, the courts in Pennsylvania have the ability to grant a harmed party: (1) injunctive relief to stop the violation of the owners’ rights and to maintain the secrecy of the information (12 Pa.C.S.A. § 5303); (2) damages (12 Pa.C.S.A. § 5304); and (3) attorney’s fees (12 Pa.C.S.A § 5305).    

To determine what information qualifies as a trade secret, the Pennsylvania courts will look to the following factors: “(1) the extent to which the information is known outside of the company’s business; (2) the extent to which the information is known by employees and others involved in the company’s business; (3) the extent of the measures taken by the company to guard the secrecy of the information; (4) the value of the information to the company and its competitors; (5) the amount of effort or money the company spent in developing the information; and (6) the ease or difficulty with which the information could be acquired or duplicated legitimately by others.” (Bimbo Bakeries USA, Inc., v. Botticella, 613 F.3d 102 (C.A.3 Pa. 2010)). 

Therefore, if it can be established that agricultural Big Data information qualifies as a trade secret, a Pennsylvania farmer may have the ability to bring a civil action against an offending party.  Furthermore, while PUTSA is specific to Pennsylvania, forty states and the District of Columbia have also enacted similar legislation.   

Federal Economic Espionage Act

While Pennsylvania farmers may have state trade secret protection through PUTSA, the federal Economic Espionage Act (EEA) Protection of Trade Secrets (18 U.S. Code §§1831 – 1839) also offers the federal government the potential to criminally prosecute those that steal trade secrets. 

Enacted in 1996, EEA defines a trade secret as all “types of financial, business, scientific, technical, economic, or engineering information...if the owner therein has taken reasonable measures to keep such information secret; and the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public” (18 U.S. Code § 1839).  Under EEA, anyone that “steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains such information” can be fined up to $5,000,000 and/or imprisoned up to 10 years (18 U.S. Code § 1832).

Providing that it can be established that a agricultural Big Data information meets the trade secret definition, and that the theft of that trade secret “is related to a product or service used in or intended for use in interstate or foreign commerce, to the economic benefit of anyone other than the owner,” federal prosecutors could possibly bring criminal charges (18 U.S. Code § 1832).