The newspaper alleges that a staff writer originally created the Twitter account. After the staff writer left the paper in 2011, the newspaper claims that it passed on the account to a new hire, Andy Bitter. According to the newspaper, Mr. Bitter then updated the Twitter account’s user name and password. The account now appears to have the handle @AndyBitterVT. (The handle is not stated within the complaint, but many news articles about the incident identify it.) After Mr. Bitter left the newspaper in July 2018 to work for a competing publication, he allegedly refused to relinquish the login information for the Twitter account and its roughly 27,000 followers, and instead used it to promote his new employer. The owner of The Roanoke Times newspaper claims that this amounts to misappropriation of a trade secret.
At first pass, it is a perplexing claim. Twitter is known as a tool for public communication, but under the Defend Trade Secrets Act, trade secrets only exist where the owner of information takes measures to keep the information secret, and the information derives economic value from not being “readily ascertainable through proper means” by another person who can obtain economic value from the information. What is secret about a Twitter account?
According to the newspaper, the manager of the Twitter account has access to three types of secret information, including:
- The account’s followers;
- A Twitter feed that displays tweets and retweets of any individual or entity that the Account itself follows, which provides insight into their interests and general trends across that curated list of followers; and
- The ability to direct message followers of the account, which creates the opportunity to share private messages and exchange information not publicly available.
Follower or “Curated Customer”?
Regarding the newspaper’s first claim, one wonders how the newspaper will show that it took measures to keep the account followers secret when the followers of the @AndyBitterVT Twitter account are plainly visible on the account’s home page. It is also difficult to see how the newspaper will prove that the identity of the account followers is not information that is “readily ascertainable by another,” when various software—exporttweet.com, tweepi.com, twiangulate.com, etc.—is sold for the express purpose of downloading a competitor’s Twitter followers.
The newspaper approaches this claim by comparing the Twitter followers to a “curated customer list.” While there is recent case law indicating that a customer list may be a trade secret, even though the contact information on the list is also obtainable through publicly accessible LinkedIn profiles, this decision was rendered under Massachusetts’ trade secret law, not under the federal Defend Trade Secrets Act. (See Ooyala, Inc. v. Dominguez.) An older case out of California (PhoneDog v. Kravitz) also allowed a complaint to move forward when a company that reviewed mobile products alleged that a former employee was given use of a Twitter account, then refused to return it when he ended his employment, but again, this case was brought under state law, not the federal Defend Trade Secrets Act. But, there is also recent case law from California (Veronica Foods Co. v. Ecklin) in which the Court held that a customer list was not a trade secret under the federal Defend Trade Secrets Act because the company had announced the names of many of its customers and suppliers on its website and social media accounts, meaning that its full customer list was not “secret.”
Feed for Thought
The newspaper’s second claim is that the Twitter feed generated by accounts that the @AndyBitterVT account itself follows is also a trade secret. Again, under the federal statute, the newspaper would need to show that it took steps to keep the Twitter feed secret. This would appear to be a difficult task, as @AndyBitterVT account Twitter page does not hide the identity of the accounts that it follows, and anyone could easily follow those same accounts to re-create a feed of this so-called “secret” information. For the same reason, the feed of activity by the followers also seems “readily ascertainable” by others. Would the situation be different if it is found that the @AndyBitter Twitter account sometimes “went private” and hid the accounts that it was following? Perhaps. In Cellular Accessories for Less, Inc. v. Trinitas Ltd. Liab. Co., a court deciding a case under California’s trade secret law recently held that an employee’s LinkedIn contacts may be a trade secret if the employee set the contacts so that they were not publicly viewable, or if the employee made the contacts public but the employer had not given him permission to do so.
The Power of the DM
Finally, the newspaper’s third claim to trade secret information is the Twitter account’s ability to direct message followers. This is a facially interesting claim; direct messages resemble private emails, not public tweets. But is the ability to send a private message a secret that the newspaper can show that it took measures to keep? And is the “opportunity” to exchange private information the same as an actual secret that one took measures to keep? One also wonders what damages the newspaper can claim were caused by the loss of this secret in particular? It seems that because the followers of the @AndyBitterVT account are not secret, the newspaper could simply form and use another Twitter account to direct message any or all of those same followers, as long as the account holders have opted to allow direct message contacts. Here, the newspaper claims “[i]t would take an account representative or writer at BH Media seven years at a cost of at least $150,000 to attempt to recreate the Account, but any attempt at recreation would likely never result in the same configuration of followers.” It has requested an order awarding an unspecified amount in damages.
How could this situation have been avoided in the first place? Contract law, not trade secret law, would seem to be the best bet. The employer could have included provisions in its contract with the employee stating that the company owned the account, prohibiting the employee from changing the user name or password to the account without written permission, and requiring the employee to inform the employer of any changes to the password on the account immediately. The employer also could have generated the Twitter account in its own name, rather than letting the account operate in the employee’s given name for what may have been up to seven years. Alternatively, the employee could have started his own Twitter account before joining the newspaper, and obtained written confirmation that the account was his own before beginning work at the paper.
We live in a time when the maintenance of a social media presence on multiple platforms is mission critical for most companies. In addition to Twitter feeds, employees form LinkedIn profiles and groups on behalf of employers. They maintain work-related Facebook pages. They manage Instagram, Pinterest and Yelp accounts. As a result, regardless of its outcome, BH Media Group, Inc. v. Andy Bitter should serve as a reminder for companies to never take the oft-debated fruits of social media efforts for granted.