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On my phone, I have many different ideas for startups, books, and other creative endeavours. Most of them are probably (or certainly) worthless, but a few have some potential. As I understand it, these ideas aren't protected by intellectual property law, because they are just ideas.

If the police search my phone (say, when I cross an international border), and read my notes app with these ideas, can an enterprising police officer then use the idea originally gained from their search? If they do, can I sue them for stealing my idea? Or am I out of luck because ideas aren't protected?

Interested in answers from any and all jurisdictions.

12
  • 1
    Aren’t they under your copyright automatically (unless created in the U.S.) if they are expressed as your originals?
    – kisspuska
    Sep 20 at 6:14
  • 10
    Ideas cannot be copyrighted, @kisspuska.
    – Nij
    Sep 20 at 7:37
  • 2
    If you wouldn't be able to prevail in suing them for taking your idea had they read it on a random loose paper blown out of your garbage bin, you wouldn't prevail here either.
    – Nij
    Sep 20 at 7:39
  • 1
    This isn't about copyright really. The question is: If a police officer does a search in a perfectly legal way, they can obviously use what he finds to decide whether you should or should not be further investigated etc. But do they have any right to use the result of a legal search privately? I wouldn't think so.
    – gnasher729
    Sep 20 at 8:15
  • 17
    Our company has very specific rules about traveling overseas with proprietary information on electronic devices for exactly this reason. Even if they couldn't legally use the information, it is difficult to enforce. Keep proprietary data protected behind password protection on a remote server so that they can't stumble upon it by tapping around.
    – ColleenV
    Sep 20 at 15:16
26

Mere ideas are not, as others have said, protected by copyright. However, the police officer in such a situation may have a duty of confidentiality, particularly if s/he is informed that the contents of the phone are confidential.

For example the "Officer's Code of Conduct" of Canton Ohio, says:

Whatever a Police Officer sees, hears or learns of that is of a confidential nature will be kept a secret unless the performance of duty or legal provision requires otherwise. Members of the public have a right to security and privacy, and information obtained about them must not be improperly divulged.

Many police departments have similar codes of conduct or policies. Such a policy might apply in the circumstances described in the question.

In this page on "Confidential information" posted by the TaylorWessing law firm, it is said that:

There are three circumstances in which the disclosure of information gives rise to an obligation of confidence:

  • An obligation imposed by contract – for example, non-disclosure agreements.
  • An obligation implied because of the circumstances of disclosure – this is determined on the basis of whether a reasonable man standing in the shoes of the recipient of the information would have realised that the information was being given to him in confidence.
  • An obligation implied because of the special relationship between the parties concerned – for example, employer/employee relationships.

The best way of ensuring that confidential information is recognised and treated as such is by contract. If no express requirement for confidentiality is imposed, the manner in which the discloser treats the information can be held as indicative of its level of confidentially. Talking about information in public places, for example, would cause the recipient to assume it was not confidential in nature.

An action for breach of confidence is based on the conscience of the recipient who must have agreed or known that the information is confidential. Thus an action for breach of confidence can be brought against the original recipient of the information and any subsequent recipient who becomes aware of the fact that the information is confidential.

An action for breach of confidence may be brought against a person who has used or disclosed, or threatened to use or disclose, confidential information without permission.

A police officer engaged in a search of confidential documents, whether found on a phone, on a computer, or in a filing cabinet, is in a "special relationship" with the sub ject of the search, and the "circumstances of disclosure" are unusual. Use of such information for private, personal gain unrelated to any police function might be held to violate an implied duty of confidentiality, particularly if the officer is informed of the confidential nature of the documents.

If the documents contain or constitute trade secrets, unauthorized use will give grounds for a lawsuit. This would not apply to proper use within a police investigation or criminal case, but it would apply to private use or disclosure by the officer.

in "Release of personal information to police: your privacy rights" from the Government of Ontario it is said that:

Ontario public sector organizations, such as provincial ministries and agencies, municipalities, schools, and transit systems, are required by law to protect your personal information and to follow certain rules when collecting, using, and disclosing your personal information.

This document is primarily about when other governnment agencies can release personal information to law enforcement, but it might be taken to imply a similar obligation to respect privacy being imposed on law enforcement officers.

In this page and other linked pages the UK metropolitian police indicate that they are subject to the Data Protection Act 2018 This is closely related to the GDPR. This restricts processing of personal data to lawful purposes. In the absence of the consent of the person searched, I doubt that use of information for personal gain having no connection with a police investigation would constitute a lawful purpose.

I have not found an authoritative source, nor a court case, in which the situation described in the question, nor any closely similar situation, is addressed or decided.

9

can I sue them for stealing my idea?

The case of Oxford v Moss 1979 established that information, in and of itself, cannot be stolen. So, in answer to the question posed: No

However, a civil claim may be appropriate if the officer has been found guilty of either a criminal offence, such as s.1 of the Computer Misuse Act 1990 or of (gross-)misconduct by breaching, for example, the following Standards of Professional Behaviour:

Honesty and Integrity

  • Police officers are honest, act with integrity and do not compromise or abuse their position.

Confidentiality

  • Police officers treat information with respect and access or disclose it only in the proper course of police duties.

Discreditable Conduct

  • Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty.

That said, it is not uncommon for a Chief Constable to offer a "without prejudice ex gratia" payment to someone civilly or criminally wronged by the police to avoid the pain, precedent and paperwork a civil suit will bring.

(I've not mentioned the Data Protection Act 2018 or GDPR as the OP does not reference the unlawful processing etc of "personal information" but there are other potential offences that could be considered resulting with the same outcomes.)

6

Your ideas for startups or inventions might qualify as trade secrets. Trade secret law is not uniform internationally so this might or might not help you. But it is very uniform within the US.

1
  • 1
    Trade secret law is very nearly uniform within the U.S., however, since the federal defend trade secrets act, and a widely adopted uniform act that largely parrots the majority common law rules mean that there is very little variation from jurisdiction to the jurisdiction in the U.S.
    – ohwilleke
    Sep 21 at 23:23
4

Under the Borders, Citizenship, and Immigration Act 2009, ss 14 et seq, the wrongful disclosure of information gained by a customs officer in their search is a criminal offence. Thus, the misuse of your information (ie, your ideas) would not be lawful.

However, the problem is that UK Border Force Officers wear two hats: they are both customs officers under the aforementioned Act and immigration officers under the Immigration Act 1971. As far as I can see, the 1971 Act does not have the same restrictions on the ability of the Border Force to disclose information onward. Thus, you would have to show that the officer was specifically wearing their "customs" hat when searching your phone....

3
  • 1
    Likely the implied confidentiality that @David Siegel described would apply in that scenario.
    – kisspuska
    Sep 20 at 18:54
  • 1
    See Section 14(2)(b) of the Borders, Citizenship, and Immigration Act. Confidentiality is imposed on either hat. Sep 20 at 21:19
  • (s)he would be wearing both hats and the same time anyway, keeping their brains nice and warm :)
    – jwenting
    Sep 22 at 9:02
4

If you have a password protected phone, these ideas probably mostly qualify as trade secrets. A law enforcement officer using trade secrets obtained for a limited purpose in furtherance of investigating a potential crime who used the trade secrets without permission would likely be guilty of theft of trade secrets because the personal use would exceed the officer's lawful authority to use material obtained pursuant to the scope of your permission, or the scope of a search warrant.

Police officers have immunity from legal liability for acts conducted in the course of their duties, so the search itself would likely not violate any law, but the use of the trade secrets for personal benefit might be beyond the scope of the officer's official immunity even though it is connected with the officer's official duties.

Another possibility is that the trade secrets constitute intellectual property, and the use of them by an officer constitutes a 5th Amendment taking of property without compensation since it was done by a government. I haven't explored any cases like that but it is at least a plausible theory.

A use of exact wording of say, a poem, on your phone, could be a copyright violation, but usually the use of unimplemented ideas would not be protected by copyright or patentable -- although an attempt to patent an idea taken in great detail from your device (e.g. a design of a better mousetrap) might be something that a court could estop an officer from doing in these circumstances as you put forward your own application.

The officer's conduct also might constitute criminal official misconduct by obtaining private unauthorized benefit from the officer's duties.

1

Ideas are not copyrightable

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

17 USC 102

Copyright only is granted to an expression of an idea. DC's Superman is an expression of the idea of an impossibly powerful alien being with a heart of gold. But so is Marvel's The Sentry. Their expression is what differs.

A phone book's formatting can contain the tiny quantum of creativity needed, but it does not extend to the ideas expressed in it, and also not to the information (Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991): Information is not copyrightable)

If an officer would read your cliff notes and write a story that uses just the idea, you have no recourse - he can lift the ideas as he wants, there is no copyright on ideas. If something of the initial creativity of the list is left, then you might have a case, but that is really hard to prove.

Only if he reads your finished story and stats to write something substantially similar, then he infringes on your copyrighted expression in a way that is easily provable.

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  • @kisspuska No. 17 USC 102. the expression of the notes is protected, as in their formatting, but not their ideas. Ideas are not copyrightable. By transforming a mere list into a text, any copyrightable element of it is lost.
    – Trish
    Sep 20 at 16:13
  • 1
    the selection and ordering of items in a list may be creative even if the items are all facts that are not subject to copyright. Such selection and ordering might be preserved after conversion to a text, and so the text might infringe the copyright on the list. Not that an obvious ordering such as alphabetical or chronological will not be creative. Sep 20 at 16:48
  • It might be extremely hard to prove that in a longer work and might also fall in case the notes follow established scenes-a-faire routes or are a sheer necessity.
    – Trish
    Sep 20 at 16:51
  • Yes such a case would be highly fact-dependent, and not all such situations would be infringement. We are also getting rather far away for the question here, perhaps this should be a separate question. Sep 20 at 17:34

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