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Benny Lava

Help! Protection of Proprietary Data

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I was hoping for some guidance on the USG's obligations with respect to Contractor proprietary data.

What I do know is this, generally speaking:

- Data (Technical Data and/or Computer Software) "delivered" under a USG contract allows the USG to do whatever they want with it unless the Contractor asserts rights in such data.

- 18 USC 1905 obligates Government employees to protect proprietary information, unless otherwise authorized by law.

I suppose I will ask my question by posing a scenario.

Let's say a Contractor is conducting a monthly status review with the USG and discloses some Contractor proprietary information. This information was not a deliverable. It may or may not have been marked proprietary. The Contractor did not negotiate rights in this information prior to contract award, because it's not really the sort of thing you think of beforehand (let's say the Contractor disclosed how some of the deliverables fit within the Contractor's overall future strategy). Can the USG disclose this information to a competitor of the Contractor? What is the regulatory or legal basis?

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I was hoping for some guidance on the USG's obligations with respect to Contractor proprietary data.

What I do know is this, generally speaking:

- Data (Technical Data and/or Computer Software) "delivered" under a USG contract allows the USG to do whatever they want with it unless the Contractor asserts rights in such data.

- 18 USC 1905 obligates Government employees to protect proprietary information, unless otherwise authorized by law.

I suppose I will ask my question by posing a scenario.

Let's say a Contractor is conducting a monthly status review with the USG and discloses some Contractor proprietary information. This information was not a deliverable. It may or may not have been marked proprietary. The Contractor did not negotiate rights in this information prior to contract award, because it's not really the sort of thing you think of beforehand (let's say the Contractor disclosed how some of the deliverables fit within the Contractor's overall future strategy). Can the USG disclose this information to a competitor of the Contractor? What is the regulatory or legal basis?

If you didn't mark it as proprietary then you did not adequately protect yourself. Legal rights are not really the issue. The problem is that your data is now in the hands of God knows who and they might do God knows what with it, without any thought about data rights. Remember that what you call "the USG" is nothing but a bunch of people with copies of your progress reports. They're clueless.

Big mistake.

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If you didn't mark it as proprietary then you did not adequately protect yourself. Legal rights are not really the issue. The problem is that your data is now in the hands of God knows who and they might do God knows what with it, without any thought about data rights. Remember that what you call "the USG" is nothing but a bunch of people with copies of your progress reports. They're clueless.

Big mistake.

Mr. Edwards, thank you for your reply. I definitely understand your sentiment regarding what the Government tends to do with data, especially unmarked data.

Now, what if we mark the Monthly Status Reports "proprietary"? We have not negotiated anything regarding data rights, and we are not including the FAR mandated limited rights notice. We're just marking it proprietary.

Does the Government have an obligation not to disclose it to third parties? I would imagine they do, because after all, we would all agree that it would be improper for the Government to disclose, say, our indirect rates to competitors, right?

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Had to laugh at the name "Benny Lava." Hilarious video.

As for your question, I think this forum discussed it a few years ago, but I coudn't find it in the archives. IIRC, it was the same issue -- how to protect information that is discussed in a meeting, but that is not a data deliverable and is not marked with any of the official legends.

Can anyone help find that again?

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Had to laugh at the name "Benny Lava." Hilarious video.

As for your question, I think this forum discussed it a few years ago, but I coudn't find it in the archives. IIRC, it was the same issue -- how to protect information that is discussed in a meeting, but that is not a data deliverable and is not marked with any of the official legends.

Can anyone help find that again?

Did anyone happen to find that post again by any chance?

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