Energy Companies Trying To Abuse Intellectual Property Law To Hinder Research Into Impact Of Fracking

(Mis)Uses of Technology

from the but-of-course dept

Fri, Oct 18th 2013 8:53am — Mike Masnick

While fracking is quite controversial, you'd think it shouldn't be controversial to want to get data and study the impact of fracking. After all, if there really isn't that much harm to it, then wouldn't that be good for the companies involved in fracking? And if, as some argue, fracking has seriously dangerous consequences, shouldn't we want to find that out as well? Of course, that assumes that companies involved in fracking are actually interested in doing what makes the most sense, rather than what makes the most money (I know, I know... stop laughing). And, here's where intellectual property issues are getting involved. A group of top intellectual property lawyers are pointing out that fracking companies are actively resisting a plan in Alaska to study the potential environmental, health and safety risks of fracking by arguing that it would violate their trade secrets. The professors point out that this is ridiculous:

[W]e remain concerned that the fracking industry has opposed the reasonable efforts of regulators throughout the country to have access to information about the exact chemical composition of fracking fluids. Such access should not only be uncontroversial, as trade secret information is shared with regulators at all levels of government and in a range of industries, but should be standard operating procedure for any regulatory entity charged with stewarding our nation’s natural resources. To deny regulators and the public access to such information is to prevent an evidenced-based analysis of the EHS impacts, if any, of fracking. It is, in sum, an effort to render the regulation of fracking as a game based upon guesswork and supposition rather than hard data. Moreover, we believe that the alleged competitive harm associated with the possible disclosure of these trade secrets (if they qualify, in fact, as trade secrets) to the public is at best overstated, and at worst reflects a skewed placement of commercial interests over the broad interests of the public in transparency, accountability and safe environmental management.

We don't talk that much about trade secret issues around here, usually covering other areas that are often lumped together in the "intellectual property" bucket. However, there's been an increasing push by some big industry players to increasingly rely on and expand trade secret law in all sorts of dangerous ways -- not to actually "protect trade secrets," but to avoid regulations (such as here) and to limit and stifle innovation and competition. Unfortunately, it seems likely that issues around trade secrets are quickly going to be nearly as important as the fights over things like copyright, patents and trademarks in terms of how they're abused by companies.

Alaska Followup Letter 10 14 13 FINAL (PDF)Alaska Followup Letter 10 14 13 FINAL (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: alaska, environment, fracking, regulations, trade secrets

22 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

That One Guy (profile), 18 Oct 2013 @ 7:08am

Suggested government response:
No research, studies or data = No fracking allowed.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 18 Oct 2013 @ 9:07am

At long last, Mike connects "abuse" and "companies"!
Red letter day! Break out the bubbly again! (That's Coca-Cola.)

As you all know, Mike and I both support copyright. I've been railing at his framing of copyright as entirely bad when actually he just examples abuse by the usual bad actors. Here he's also tacitly approving of "Intellectual Property Law"...

And framed this as anti-corporation... Oooh. My work here is nearly done.
[ link to this | view in thread ]
Anonymous Coward, 18 Oct 2013 @ 9:18am

If the Chemicals are that much of a trade secret then maybe they shouldn't be pumping them in to the ground water supply. or maybe they should make it possible to clean every bit of the chemical after use .. retaining privacy or copyright even ownership after putting it out like garbage on the curb is idiotic .............. but the corporations will win .. someone in DC will get their pockets lined and this issue will be a memory Watch the Films Gasland and Gasland 2 , and you'll see where this is heading
[ link to this | view in thread ]
Anonymous Coward, 18 Oct 2013 @ 9:20am

When you're pumping chemicals into the ground, you don't get to claim that exactly which chemicals you are pumping is a "trade secret".

We require ingredient lists for food, even though this would otherwise be an important trade secret, because the public good outweighs the need for secrecy. I think this is a similar situation. The public has a right to know what the potential environmental impacts are, and we can't do that if we don't even know what they are using.
[ link to this | view in thread ]
S. T. Stone, 18 Oct 2013 @ 9:37am

Re: At long last, Mike connects "abuse" and "companies"!
Door�s to your left. Mind your tinfoil hat.
[ link to this | view in thread ]
Michael, 18 Oct 2013 @ 9:42am

What the frack?
[ link to this | view in thread ]
Anonymous Coward, 18 Oct 2013 @ 9:46am

and who didn't expect something like this? if it is a giant company, it got to that stage by being a lying, cheating, bribing company, run by people of equal title. if there is something that can be dreamed up and used to better it's position as a lying, cheating and bribing company, it will do so! as long as there isn't anything that will benefit the customers and the customers dont discover a way of helping themselves instead of the companies, everything will progress!
[ link to this | view in thread ]
Anonymous Coward, 18 Oct 2013 @ 10:05am

The professors may have "academic smarts", but I do not believe the same can be said concerning "street smarts". Yes, sensitive business information is commonly shared with federal and state agencies, but this is not quite the same as sharing with the public at large, which the professors imply is routinely done.

Importantly, I am assuming that the information being discussed is in fact a trade secret within the meaning set forth in the Restatement of Unfair Competition, the Uniform Trade Secrets Act as adopted and amended by various states, and/or state common law.

It should be noted that there are a number of state and federal laws that restrict the disclosure of private information that does not meet the criteria associated with trade secrets. In the context of federal law, one example can be found at 5 USC 552(b)4.
[ link to this | view in thread ]
Not an Electronic Rodent (profile), 18 Oct 2013 @ 10:28am

Re: Suggested government response:.... vs ACTUAL government response
*k-ching* "Clearly increased oil production is vital to the national security interest, so fracking should continue while the impact is given further study (over the next... ooooh 60 or 70 years or so....)"
[ link to this | view in thread ]
AC Unknown (profile), 18 Oct 2013 @ 11:10am

Re: At long last, Mike connects "abuse" and "companies"!
You seriously need psychiatric help.
[ link to this | view in thread ]
Pitabred (profile), 18 Oct 2013 @ 12:37pm

Re:
Great. If they don't want to share that info, they can just not frack, because there's too much risk to the public. Easy solution.
[ link to this | view in thread ]
Anonymous Coward, 18 Oct 2013 @ 1:16pm

Natural gas companies are going to get fracking outlawed with this strategy
A lot of analysts have said that the Natural gas industry (which does all the fracking) is being VERY short sighted here in fighting research and regulation into fracking and it's safety. A few key points here from their conclusion.

1) Fear of fracking is causing more and more places to outlaw the whole process altogether from fear of it harming the environment and contaminating their water supply. If natural gas companies can't frack, then their drilling boom is over because it's too expensive to drill the normal way.

2) It's also more difficult and expensive for natural gas companies to build more wells, because of increased state and local resistance to fracking from how much we don't know about it. Their secrecy on this just makes their problems even worse, and gives more credibility to all the Internet rumors about fracking being bad.

3) If the federal government actually studied fracking and made some reasonable safety regulations to prevent environmental damage and contaminating water supplies, it would only increase the cost of natural gas somewhere from 5 to 10 percent a gallon, depending on how the regulations are written. But on the other hand it would make it much easier and likely cheaper for natural gas companies to build more wells, since a lot of opposition to fracking would die down as lot of people would be convinced that it's safe once it's been studied and safety laws and regulations are in place.
[ link to this | view in thread ]
Anonymous Coward, 18 Oct 2013 @ 1:23pm

Re: Re:
Note the operative words "public at large". Information is shared with agencies, just not with the public. Since it is the agencies that are engaged in rulemaking, no reason is seen to force disclosure to extraneous third parties.
[ link to this | view in thread ]
Scot, 18 Oct 2013 @ 1:56pm

Fracing since I-don't-know-when?
My father was an oilfield worker years and years ago. I remember him talking about frac jobs in the 70s and 80s, so what is the hue and cry about it in 2013? What's different about them now? Next time we visit I intend to ask what he knows about it but does anyone here have an idea?
[ link to this | view in thread ]
John Fenderson (profile), 18 Oct 2013 @ 2:02pm

Re: Re: Re:
Which brings up an entirely different issue: we can't blindly trust the agencies. To be effective, this information would have to be made public so the agencies' work can be double-checked.

Still, it would be nice if they at least went through the motions of some kind of actual oversight. If the oil companies don't want to reveal what that crap is, even just to regulatory agencies, then they shouldn't be allowed to pump it into what is, quite literally, the commons.
[ link to this | view in thread ]
John Fenderson (profile), 18 Oct 2013 @ 2:06pm

Re: Natural gas companies are going to get fracking outlawed with this strategy
Their resistance makes it look like fracking is a disaster in the making and that they know it.
[ link to this | view in thread ]
John Fenderson (profile), 18 Oct 2013 @ 2:10pm

Re: Fracing since I-don't-know-when?
As I understand it, there are two main differences. One is the type of ground they're doing it in. In the old days, fracking was used as an alternative to using explosives, and mostly consisted of using high-pressure water.

Now, it uses a toxic stew of chemicals and is being used in different types of ground (shale, mostly). The problem isn't the fracking itself, it's that the chemicals they are using flow through the porous shale and into water tables.
[ link to this | view in thread ]
Wally (profile), 18 Oct 2013 @ 10:08pm

Trade Secrets my ASS!!
First...all one has to do is take a crash course in basic US High School Geology to learn how fracturing shale can destablize the terrain at least 3 miles above it.

Second...TRADE SECRETES MY FUCKING ASS...Fracking is FRACKING...the basic method of extracting petroleum and natural gas products from shale through fracking is virtually the samw no matter what you do.

Here's a thought that will blow your minds...when they say "It's trade secret that varies with each company", what they're really saying is "We don't have a standardized method of doing this". That's the danger in it...it's not regulated as much as oil drilling or mining is....

As for the trademark on methods...look at Chesapeake Energy's website on fracking...it shows EXACTLY how they're doing it!
[ link to this | view in thread ]
Jollygreengiant (profile), 19 Oct 2013 @ 3:00am

The way I see it, the moment the chemical leaves the pipe, it leaves the company's control, and at that point there's no difference between this and a chemical spill. I don't see any company being able to deny govt. agencies access to the recipe of what they've just poured into a water-course on the basis of 'trade secrets'
[ link to this | view in thread ]
Anonymous Coward, 19 Oct 2013 @ 6:25am

Re:
Ever hear of the EPA?? Oh and while I'm at it...how is a company not responsible for the chemicals they dump into places they have been?.
[ link to this | view in thread ]
Anonymous, 19 Oct 2013 @ 4:31pm

Re: Suggested government response:
Frack those fracking mother frackers!
[ link to this | view in thread ]
Pragmatic, 21 Oct 2013 @ 3:38am

Re: At long last, Mike connects "abuse" and "companies"!
You've had no impact, achieved nothing, and are only occasionally amusing because you don't take an interest in anything that contradicts your unfounded opinions, which you declare in opposition to facts and common sense. Shut up and go away.
[ link to this | view in thread ]