Innovate Magazine is a special compendium of articles written by and for American Intellectual Property Law Association (AIPLA) members. The October 2019 edition features an article by Benjamin Fink titled, “Protecting Trade Secrets in a Coworking Space.” Ben Perkins, a University of Georgia law student and BFV’s 2019 summer associate, also contributed to this article.
Protecting Trade Secrets in a Coworking Space
Over the past decade, coworking space, like those operated by WeWork, Roam and Industrious, have grown exponentially. These novel office designs and collaborative work environments are being adopted by start-ups, freelancers and established companies alike. While coworking space offers numerous advantages, it also raises many legal questions. Most notably is the protection of trade secrets. In these environments, having employees in a highly collaborative coworking space can make it challenging for a company to protect its confidential and/or sensitive information.
Physical security is one of the biggest challenges faced by coworking businesses. A coworking space typically utilizes open-office designs, publicly accessible desks, and shared spaces. Keeping information private in this open environment is much more challenging than in a traditional office space. The push for flexible employment options is another challenge faced by companies that rely on coworkers. While often touted as a benefit of coworking, short-term business and employment relationships can present opportunities for theft of sensitive company information. Finally, coworkers face challenges to privacy presented by shared networks and publicly accessible Wi-Fi.
To overcome some of these challenges to protecting sensitive information in a coworking space, businesses ought to consider the following tips:
1. What valuable information do you need to protect?
Sometimes, business owners are unaware of just how much protectable information they possess. Broadly speaking, trade secret law may protect valuable information that provides your business with a competitive advantage because others are not privy to that information. This broad definition can cover a wide range of company information, from customer lists to innovative developments. So, before you do anything else, contemplate what information you need to protect.
2. Be conscious of who’s listening
One of the hallmarks of coworking space is the open-office workspace. While the open-office concept is a great way to encourage collaboration, it is also an eavesdropper’s paradise. For information to qualify as a trade secret, you must take reasonable efforts to protect the information. So, before you tell your employees about your next big idea, it may be worth doing a quick 360° to see who might be listening in on your conversation, or meeting behind closed doors.
3. Protect your sensitive documents
Using publicly accessible printers and “hot desks” are great ways to keep overhead low, but they also can present challenges to keeping private documents, well, private. You don’t have to spring for an expensive office suite or personal printer, but you should make an effort to maintain physical control over sensitive company documents at all times.
4. Don’t openly display your computer screen
It’s tough to hide anything in a place that prides itself on having as few walls as possible. However, you should take reasonable efforts to ensure no one can see the sensitive information on your workers’ computers. Taking precautions like making sure they lock their screens while they are away from their desks and not displaying their devices to people who are not affiliated with the business can go a long way in protecting your information. Inexpensive screen protectors also are available that will shield the screen from anyone not looking squarely at the display.
5. Be wary of allowing others to use your company devices
A collaborative workspace is one of the biggest draws that coworking space has to offer. In this highly collaborative environment, it may feel completely natural to let a friend borrow your phone to make a call or to loan your USB drive for a presentation. While your generous nature is laudable, consider that by allowing others to use your devices, you may be giving them access to the sensitive company information stored on the device.
6. Understand the risks of using publicly accessible Wi-Fi
In an age where the internet is practically essential to conduct any business, it’s no surprise that most coworking spaces offer publicly available Wi-Fi to entrepreneurs. Though many coworking spaces take steps to protect Wi-Fi users, business owners should be aware that using publicly accessible Wi-Fi carries risks of “man-in-the-middle” attacks. During these attacks, nefarious individuals can read transmissions of data from your computer over publicly accessible Wi-Fi. Considering this risk, you may want to refrain from transmitting valuable company information over publicly accessible Wi-Fi.
7. Beware of the departing employee
Another benefit of coworking space is that it gives you access to a pool of talent. You may pair up with developers to work on mutually beneficial short-term projects or hire temporary employees to serve your company while it evolves and grows. This flexibility in employing human resources can be highly advantageous, but it also presents opportunities for these short-term relationships to take your sensitive information with them. Before sharing your sensitive company information, having workers sign a non-disclosure agreement is essential. Also, consider whether the individual really needs to have the information to perform the task you have retained him or her to perform as well as the long-term prospects of your relationship with the individual.
8. Don’t give away your best ideas
If you’re in coworking space, you may be tempted to tell people about the ideas you are most excited about. However, you should temper your excitement to the extent that it compels you to tell your fellow coworkers about your best, innovative ideas. These ideas can very well form the basis of a company trade secret and once you start telling people outside your company about them, they become increasingly difficult to protect.
The workplace provides many opportunities for trade secret theft in everyday operations. These opportunities are even greater in coworking space. However, there are some relatively simple steps that every business owner or manager can take to protect information even in this open, collaborative environment. With some forethought, appropriate measures can be implemented to protect your company’s competitive edge.
Benjamin Fink is a shareholder at Berman Fink Van Horn in Atlanta. He concentrates his practice on business & employment litigation with an emphasis on non-compete, trade secret and competition-related disputes. A well-respected writer and published author, Ben also lectures on competition-related topics facing businesses. Ben is Programing Chair of AIPLA’s Trade Secrets Committee and a graduate of Emory University School of Law and Duke University. Follow his blog on Georgia Non Compete Law & Trade Secret News.
Thank you to Ben Perkins, a University of Georgia law student and BFV’s 2019 summer associate, for contributing to this article.