Before discussing a concept, product, or invention, decide what the other person needs to know, how much risk you are willing to accept, and whether written terms should come first. Judith Silver’s ten confidentiality commandments offer a useful discussion checklist—not current legal advice. Here they are, with the legal points qualified for readers in the United States.
What the commandments are for
Judith Silver’s SitePoint article, “The 10 Confidentiality Commandments,” was published on July 15, 2002, and marked updated November 11, 2024. It offers “guidelines to help you protect your ideas while progressing their commercial development.” Its practical advice is to manage what you disclose and when; its broad legal descriptions should not be treated as a current or complete statement of law. Read Silver’s article at SitePoint.
An idea is not automatically protected just because you call it confidential. In the United States, the federal trade-secret definition requires information to derive actual or potential independent economic value from not being generally known or readily ascertainable by proper means, and its owner must take reasonable measures to keep it secret. That is the federal statutory test, not a universal rule for every state or country. See 18 U.S.C. § 1839.
The 10 confidentiality commandments
1. Think before you share
Do not reveal sensitive details impulsively while boasting, brainstorming, trying to impress someone, or venting. Before a conversation, separate information you can discuss freely from details that could undermine your commercial plans if repeated or used by someone else.
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2. Assess the recipient
Consider whether the person is a competitor, potential customer, complementary business partner, or someone with another interest in the subject. Their role inside the organization matters too: a decision-maker, technical evaluator, and outside adviser may need different information and have different ability to protect it.
3. Stage the discussion
Begin with general concepts and increase the detail only as the discussion develops and the parties agree on appropriate terms. An introductory meeting rarely requires a complete technical or commercial blueprint. Share enough to establish whether there is a reason to continue, then decide what additional disclosure is justified.
4. Keep a record and stay accurate
Make a contemporaneous note of what you shared, when and where you shared it, who attended, and any relevant follow-up. A notebook or another secure record-keeping method can help document the conversation; the record itself does not make information legally protected.
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Be concise, but do not omit material facts in a way that misleads the other party. Limiting detail is different from creating a false impression.
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Ask what could happen if the information reaches competitors or the public, or is used to give someone else an advantage. The more valuable and sensitive the detail, the more important it is to limit access, choose the right stage for disclosure, and consider written protections before sharing.
6. Consider the recipient’s risks too
A person or company that regularly evaluates outside ideas may already be working on similar concepts. It may worry that accepting confidentiality terms could expose it to later claims if it independently develops something comparable. Silver gives movie studios as an example of organizations that may refuse confidentiality terms. A refusal does not prove bad intent, but it affects whether and how much to disclose.
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7. Understand what an agreement can—and cannot—do
A confidentiality agreement can set contractual expectations about access, use, and further disclosure, and may provide a basis for a contract claim if its terms are breached. Its effect depends on the language, facts, and applicable law; signing one does not by itself establish that information qualifies as a trade secret.
Federal trade-secret law also recognizes a limited immunity for certain disclosures made in confidence to a government official or attorney solely to report or investigate a suspected legal violation, or in a document filed under seal. It also addresses specified use of trade-secret information in an employee retaliation lawsuit. These are targeted statutory protections, not a general permission to disclose confidential information. See 18 U.S.C. § 1833.
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If you propose an agreement, examine what counts as confidential information, who may receive it, what uses are permitted, and what happens to materials when discussions end. A useful agreement should fit the actual exchange rather than rely on a broad label that leaves the parties unclear about their obligations.
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9. Read carefully before signing
If you are receiving information, check the definition and scope of covered material, the exceptions, and any restrictions that could affect your future work. Pay particular attention to how the agreement treats information you already knew, information that becomes public, and information developed independently, if those matters are addressed in the text.
A “residual knowledge” clause—concerning information retained in a person’s unaided memory—is a negotiated provision, not a universal entitlement or guaranteed outcome. Read it in context and consider whether it could weaken the confidentiality protections the disclosing party expects or create uncertainty for the recipient.
10. Weigh the commercial reality
Compare the information’s value and likely useful life with the cost and practical difficulty of negotiating and enforcing restrictions. A lengthy negotiation may be disproportionate for a low-value discussion; for a consequential disclosure, the cost of getting specific legal advice may be worthwhile. The right choice depends on the transaction and the law that governs it.
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A practical decision check before a meeting
- Sensitivity: What could the other party or a competitor do with the information?
- Recipient: What is this person’s role, incentive, and ability to protect what they learn?
- Stage: What is the least detail needed to decide whether discussions should continue?
- Terms: Can the parties agree on scope, permitted use, access, exceptions, and handling of materials?
- Proportionality: Is the value at stake worth the time and expense of negotiating or enforcing restrictions?
These questions help structure a business conversation; they do not determine legal rights. State law, foreign law, the precise agreement, and the facts may change the result. For a significant disclosure or a specific contract, consult a lawyer familiar with the relevant jurisdiction and transaction.
U.S. employee agreements and statutory notice
Federal law requires employers to provide notice of the statutory immunity described above in covered agreements with employees governing the use of trade secrets or other confidential information. The notice requirement may also be met by referencing a qualifying policy document provided to the employee. The requirement applies in its statutory context; it is not a general clause for every NDA or business discussion. The notice provision appears in 18 U.S.C. § 1833(b)(3).
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