The Sergey Aleynikov trade secret theft case and ethical analysis

Ethics and IT

Ethics and Information Technology

Doing Ethics Analysis

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).

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 to act morally and to consent to governmental authority (Basics of Philosophy, 2011).

This paper examined the issues raised by the theft of proprietary computer code from Goldman Sachs by its former employee. The theft, the resulting trial, and sentencing also raise other significant ethical issues, including standards of professional conduct, cybercrime, security, and privacy. Examining the events from the differing perspectives of the Doing Ethics Technique provides different insights than those that come from using the ACS Code of Ethics; likewise using different classical ethical theories.

What is noteworthy about analysis from the differing perspectives is that each technique is useful for different purposes. Doing Ethics Techniques yields the broadest perspectives and a higher likelihood of developing group consensus; it fills the need to "sift through issues to determine appropriate courses of action" (Simpson, 2003). The ACS Code of Ethics is most valuable for its presentation of behaviors to avoid or engage; it is not intended to promote discussion or analysis per se or guarantee ethical behavior (Code of Ethics, section 4.4) . Classical ethical theories provide a means of explaining and predicting human behavior.

Having considered each approach, this paper recommends a solution that the Doing Ethics Technique suggests earlier, arriving at a compromise that allows both parties to win. Such a compromise would leave both Aleynikov's and Goldman Sachs' belief systems intact, as well as support the larger contractual framework for pursuing society's greater good.

Reference List

Australian Computer Society Code of Ethics. University of Western Australia website. Retrieved April 28, 2011 from http://undergraduate.csse.uwa.edu.au/units/CITS3200/ethics/acs-ethics.htm

Mastin, L. (2011). Basics of Philosophy. Retrieved April 28., 2011 from http://www.philosophybasics.com/branch_contractarianism.html

Sevenoaks School Philosophy Department. (2011). Ethics. Retrieved April 28, 2011 from http://www.sevenoaksphilosophy.org/ethics/egoism.html

Simpson, C. (2003). Doing Ethics: A universal technique in an accessibility contest. Retrieved April 29, 2011 from http://dl.acs.org.au/index.php/ajis/article/view/159/141

Weidner, D. (2011). Whatever you do, just don't steal from Goldman Sachs. Wall Street Journal. Retrieved April 28, 2011 from http://online.wsj.com/article/SB10001424052748703362904576219372483989688.html