Whistleblowers and Trade Secrecy's Long Shadow

<p><span><span>Employee whistleblowers expose harmful and unlawful corporate practices, often at great personal cost. Recent examples, including those at Meta, Boeing, OpenAI, Twitter, and Theranos, highlight whistleblowers’ significant societal role. But these examples also showcase the myriad legal uncertainties and obstacles employees face when collecting and disclosing evidence of potentially illegal behavior by their employers.</span><span>&nbsp;Nearly a decade ago, Congress enacted the Defend Trade Secrets Act (DTSA) of 2016, incorporating whistleblower immunity provisions within trade secret’s statutory framework for the first time. These provisions tried to remove one potential obstacle facing whistleblowers—the threat of employer-initiated trade secrecy litigation. The DTSA’s whistleblower immunity provisions reflect the legitimate concern that employers use trade secret law as a cudgel to deter employees from exposing unlawful activities in the workplace. Despite their laudable goals, these provisions have fallen somewhat short of their promise. Analyzing a decade of caselaw, this article demonstrates courts’ inconsistent and problematic interpretation of these provisions and classifies ongoing areas of legal uncertainty for putative whistleblowers. In light of these developments, this Article considers reforms to better effectuate the worthy goals of the DTSA’s whistleblower provisions.</span></span></p>&nbsp;