The Big Questions Raised by Elon Musk’s Lawsuit Against OpenAI

The F.T.C. sued to block the biggest supermarket merger in U.S. history. The regulator moved to block Kroger’s $25 billion bid for Albertsons, warning that the deal would raise prices and damage union workers’ bargaining power.

The husband of a former BP merger and acquisitions manager who pleaded guilty this month to eavesdropping on her phone calls and then using what he had learned to illegally earn $1.76 million isn’t alone in exploiting remote work to obtain confidential information. There’s also, for example, the chief compliance officer (yes, the chief compliance officer!) who is accused of trading on information he stole from his girlfriend’s laptop. (He pleaded guilty under a cooperation agreement with the Justice Department.) Or the husband who, while his wife took work calls on the way to a family vacation, overheard that her company would miss earnings expectations and was shortly later accused of insider trading. (He agreed to pay the S.E.C. more than $300,000 to settle the charges, without admitting or denying the allegations.)

It’s not a new problem, but the post-Covid era of remote work has made it more prevalent. And companies aren’t prepared. “Many employers have pretty rigorous data protections in place,” said Laura Sack, a partner at Davis Wright Tremaine. “Less attention is being paid to less sophisticated ways of breaching confidentiality, like having a conversation that’s overheard.”

Treating family as an exception to confidentiality is a common but risky approach. “Do I think that happens every day? Yes,” said Robert Hinckley Jr., a shareholder in the Denver office of Buchalter. “As an attorney, do you do that? No.” Sack cites a hypothetical worst-case scenario: You share confidential information with your spouse, and then when you break up, that person tries to use it against you. Ellenor Stone, a partner at Morris Manning & Martin, says she sometimes tells her clients about the former head of a prep school who was awarded an $80,000 discrimination settlement — which the school later refused to pay, citing a confidentiality agreement, after his daughter posted about it on Facebook.

Can confidential conversations even happen in the work-from-home era? Stone, who often works on sensitive personnel issues, says that if she knows someone else can overhear her, even at home, she will message the person she is talking with and create code words for the conversation — for example, “When I say Bob, I mean Brian, and when I talk about back surgery, I’m talking about Brian’s heart condition.” Sack said that during the pandemic, her husband had referred to her parked car as a “mobile office” because it was often the only place she could guarantee she wouldn’t be within earshot of anyone else.