This case concerns trade secret misappropriation and theft of intellectual property, as well as issues of surveillance and cybercrime. Sergey Aleynikov attempted to steal computer code from Goldman Sachs in order to build competing technology for his new employer. Goldman Sachs prosecuted Aleynikov and won a conviction. The case discusses applicable case laws, including the difficulty of enforcing non-compete and non-disclosure agreements.
Sergey Aleynikov was employed by Goldman Sachs, and as part of his employment, had signed a confidentiality agreement. Aleynikov found new employment with Teza Technologies, where he was hired to build a high-speed trading platform to compete with Goldman Sachs. On his last day of employment for Goldman Sachs, Sergey Aleynikov downloaded proprietary high-speed trading computer code for use in his new employment at Teza Technologies. Aleynikov attempted to cover up evidence of his theft by erasing and deleting files.
Q3. This case raises the following issues:
Goldman Sachs' right to protect its intellectual property, to enforce confidentiality agreements, to surveil employees, also its right to compete
Aleynikov's right to gainful employment, and his right to enjoy the product of his labor
Teza Technology's right to compete
A company's right to compete, to own intellectual property, to enforce non-compete and non-disclosure agreements, to surveil employees
An employee's right to skills and knowledge
What defines a trade secret?
What defines reasonable geographic and duration constraints for non-compete agreements?
What is the appropriate punishment for trade secret misappropriation and theft of trade secrets?
Q4. The following stakeholders are involved:
Goldman Sachs, its shareholders, and customers and employers stand to gain by any judgment that affirms Goldman Sachs' rights to hold intellectual property, to enforce confidentiality, non-compete and non-disclosure agreements thereby giving the company a competitive edge; they all lose by any judgment that voids or erodes any of these.
Sergey Aleynikov stands to gain his freedom and reasonable compensation if it can be shown that he owns the disputed code; otherwise he loses all around.
Teza Technology's shareholders stand to gain if they can legally use the disputed code to compete; otherwise they lose out and have possibly no incentive to hire Aleynikov
Q5. One of the ethical issues that this case raises is what constitutes theft. While many people would agree that taking something that one has no right to take constitutes theft, from a teleological perspective, Aleynikov's theft may not be theft at all. If one considers that the end justifies the means, it may be that Aleynikov acted correctly according to his belief system. Even within a deontological system, "thou shalt not steal" is not a moral absolute without resolving the question of what constitutes theft.
Another issue for ethical consideration is what boundaries define intellectual property. Although the case does not explicitly state it, one presumes that Aleynikov in some way believed that he was entitled to the use of code that he had written. If one posits a scenario where Goldman Sachs had in some way reneged on the terms of Aleynikov's employment contract, then Aleynikov is justified in taking what he believes to be his. Teleogically speaking, Aleynikov's theft may not be theft at all, he was reclaiming his property which he had been duped out of. Certainly if one considers Aleynikov's actions from eth standpoint of individual ethical egoism, his actions can be justified.
Q6. What can be done include the following possibilities:
Goldman Sachs could drop their claim to ownership of the code.
Goldman Sachs could forgive Aleynikov's transgression, while maintaining their right to own the code.
Aleynikov could offer to make restitution.
Aleynikov could countersue for ownership of the disputed code.
Q7. Beyond what actually happened, which represents one end of the continuum, at the opposite end might be Aleynikov countersuing to void Goldman Sach's claim to ownership of what he considered his intellectual property. In this scenario, the concept of intellectual property remains intact, but the balance of power shifts in the competing interests between employee and employer.
If both parties agree to some form of settlement, then they all win, depending on specific terms. Or, if Teza Technologies agreed not to use the disputed code, then Goldman Sachs' competitive advantage remains intact, as do Goldman Sach's ownership claims.
Q8. The best option would have involved Aleynikov filing some form of countersuit, alleging breach of employment contract which he would claimed he signed under duress, invasion of privacy, and theft of his intellectual property. This countersuit is his only practical hope of obtaining enough leverage against Goldman Sachs to obtain a compromise that would be win-win for all parties. Certainly he should attempt another trial to have any chance at fairer sentencing than what he received (Weidner, 2011).
ACS Code of Ethics
In analyzing this case from the standpoint of the ACS Code of Ethics, there are several problem areas. Aleynikov appears to have violated each of Priorities 4.5.1 through 4.5.6; he neither preserved the information in his care, nor did he (presumably) advise his employer of any perceived conflict of interest. The commonality among all these violations is that they all involve a failure on Aleynikov's part to recognize any obligation or responsibility to promote or protect interests other than his own.
Aleynikov also violated Competence standard 4.6.2, given that he refused to relinquish the rights to code he had written for Goldman Sachs. Implicit in that standard is the recognition that a contract exists between employer and employee, which contract Aleynikov either unilaterally invalidated, or else felt that Goldman Sachs had set it aside, thereby enabling his theft.
It appears that Aleynikov also violated Social Implication standard 4.8.6 in that he colluded with Teza Technologies to acquire Goldman Sachs' code. Although there is no way of knowing who approached who regarding the transaction, the apparent inducement that Aleynikov might have used to influence Teza would have been the prospects of profiting handsomely from the new software they would develop.
Perhaps the single most disturbing transgression was violating ACS Code of Ethics standard 4.10.2, to knowingly engage in dishonest or fraudulent practices. Regardless of how Aleynikov felt about his employment with Goldman Sachs and any question as to who owned the fruits of his labor, he had to know that passing proprietary code to Teza was an ethical violation. Nor did Aleynikov seek guidance as standard 4.10. 7 suggests; of course realistically speaking, looking for guidance could only have occurred in the context of Aleynikov having doubts as to the correctness of his intended course of action.
Also, given the societal implications for issues surrounding professionalism, intellectual property, privacy, security and cyber-crime, Aleynikov violated 4.1.b by not loyally serving the community. At the very least, his actions reflect poorly on ICT professionals, no matter how aggrieved or badly treated they may have been.
Classical Ethical Theories
As to classical ethical theories, the behavior of Aleynikov and Goldman Sachs predictably demonstrate adherence to widely different ethical beliefs. Aleynikov practiced teleological ethics, believing that his actions could be considered good based on whether the outcome was desirable. More specifically, Aleynikov's behavior suggests he practiced individual ethical egoism, believing that the right thing to do was what turned out to be best for him as an individual (Sevenoaks School, 2011).
As noted earlier this belief system does little to further the interests of society as a whole, and least of all Goldman Sachs. A philosophy that comes closer to representing the interests of Goldman Sachs would be contractarianism, which espouses the idea that people should adopt norms of behavior because it is reasonable for them to do so, given the contractual nature of human society. This philosophy argues that people are primarily self-interested, and that a rational assessment of the best strategy for attaining the maximization of their self-interest will lead them…