Is Your Garbage Confidential?

Dumpster DivingIf you throw a confidential document away in the garbage, is it still confidential?

Maybe not.

The District of Columbia Court of Appeals recently upheld the dismissal of claims of trespass, invasion of privacy, and conversion brought by the environmental organization Greenpeace.

Greenpeace, sometimes using controversial methods, investigates and often confronts companies like Dow Chemical.

According to the Greenpeace USA website:

Despite being one of the richest companies on the planet, Dow has done little to be a good steward of the environment. Dow's environmental track record includes the original manufacturing and distribution of now highly restricted or banned (in the United States) chemicals such as DDT, Agent Orange, Dursban (pesticide) and asbestos.

According to the court’s opinion, "between 1995 and 1999, Greenpeace criticized Dow, published 'numerous reports' on the dangers of dioxin, and campaigned against the GMO industry."

Greenpeace alleged that Dow, Sasol (another chemical company investigated by Greenpeace), a public relations firm hired by both companies, and a private security firm staffed by former Secret Service and CIA agents, engaged in corporate espionage against Greenpeace.

Dumpster Diving

The defendants' methods of intelligence-gathering allegedly included:

  • Recovering Greenpeace documents from dumpsters and recycling bins
  • Physically infiltrating and breaking into Greenpeace’s offices
  • Hacking into Greenpeace’s computers
  • Wiretapping Greenpeace’s phones

Both the dumpsters and the recycling bins were on private property. Greenpeace alleged that its trash was searched at least 135 times between July 1998 and October 2000.

In 2013, a trial court dismissed Greenpeace's claims against the defendants. The trial court found:

  • There was no trespass because Greenpeace, as a tenant in an office building, had no possessory interest in the common areas were the trash was stored.
  • There was no invasion of privacy because Greenpeace wasn't financially damaged, corporations don't have a right to privacy under DC law, and the claim was barred by the one-year statute of limitations.
  • There was no cause of action for conversion of "Intangible property that is not merged into a transferrable document."

The Court of Appeals agreed, saying:

Greenpeace's conversion claim fails as a matter of law on the independent basis that it has no recognized property interest in anything that it purposefully threw away or abandoned. Conversion is “an unlawful exercise of ownership, dominion, and control over the personality of another in denial or repudiation of his right to such property.” … By its very definition, a conversion claim cannot lie in “items lost or left behind” or thrown away.

With respect to whether Greenpeace had rights in any "private" information contained in the discarded documents, the court held:

Greenpeace's actions in placing its “confidential” information in the trash and recycling, located either outside the building (U Street Office) or in a locked communal trash room (H Street Office), constituted abandonment of both the physical documents and its contents.

Protecting Confidential Information

Trade secret law also deals with the misappropriation of confidential information, such as formulas, customer lists, business plans, etc. In order for something to be a trade secret, it must:

  • Not be generally known to the public
  • Confer some sort of economic benefit to its holder
  • Be the subject of reasonable efforts to protect its secrecy

Some cases have allowed the protection of trade secrets even when they were thrown away in the trash.

If you’re concerned that a competitor may be going through your business’s trash in order to discover your confidential information, it’s a good idea to invest in a shredder – and consult a trade secret lawyer.

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