The criminal case of the alleged Goldman spy is off and running, and it’s shaping up to be a good one. The case seems likely to open a window into the mysterious world of high-frequency trading and to shed some light inside Wall Street’s most notorious powerhouse, Goldman Sachs. But the lawsuit might do something else, too: It could test legal limits related to trade secrets — and cause angst far from the trading world.
The man of the hour is the defendant, Sergey Aleynikov. Aleynikov was a programmer in Goldman’s high-frequency trading group and is accused of taking code in order to help a new employer compete with Goldman. He disputes this and has said he intended to take some code, but not anything secret – just open-source code. The open-source part of that is crucial.
When open-source code is involved, what can be defended as a trade secret? His argument is “going to make it harder for government to prove that what was taken was in fact proprietary to Goldman,” says Brent Cossrow of the Employee Defection and Trade Secrets Practice Group of law firm Fisher Phillips. That could roil the high-frequency trading world, a competitive and controversial business that is transforming the financial markets. Beyond that, any company that has open-source software sitting on its networks, integrated into its digital intellectual property, might have to circle the wagons and figure out what to do.
High-frequency trading relies on algorithms that exploit tiny price differences in the markets. Do that enough, fast enough, and it can lead to big profits. Algorithms that do best have essentially found a niche in the market, and their owners are secretive because they don’t want anyone else muscling in on their niche. The algorithm is the secret sauce.
Goldman purchased its original code in 1999 from Hull Trading, founded by Chicago trader Blair Hull, for $531 million. After that, Goldman presumably had the right to do what it wanted with the code. It could add to it, take away from it, and tinker with it at will. It brought on programmers to do that, including Aleynikov. Programmers are vital in this space, and they’re demanding high pay. After UBS reportedly came calling for Aleynikov, Goldman paid Aleynikov $400,000 a year.
But when programmers write new code to insert into existing code, that can take hours. So sometimes, instead, they use open-source alternatives available for free on the internet. Open-source software is meant to be shared. It’s used in many industries, but Wall Street’s programmers find it particularly useful. In trading, time is money, so speed is prized.
In this case, proprietary and open-source code come head to head. Around the time Aleynikov planned to take a new job, he uploaded some code. Goldman says he stole proprietary code that it and the government claims is a trade secret. But Aleynikov says that he only meant to take open source code, which by definition isn’t secret.
Cossrow says this argument raises several questions. How much of what Aleynikov downloaded was open source? How much of it was proprietary? Those questions are possible to answer — it requires looking at the code and at the metadata (data about data) underlying it. That could mean laying bare Goldman’s code, which would be something between a headache and nightmare for Goldman. The government wants the courtroom closed if that happens.
But there are more questions: as there are hundreds of open-source licenses, what were the terms of the open-source license or licenses associated with the code Aleynikov is accused of taking? And how did Aleynikov use the code in the broader software?
All that leads to the ultimate question: how much open source code, and of what quality, does it take to dilute a trade secret? As Cossrow explains, “if you bake the world’s best brownie, and the recipe is secret, the mere fact that you used water as an ingredient doesn’t mean the whole recipe is diluted.” However the courts haven’t gotten much more specific than that.
For lawyers like Cossrow, this case is turning into a big deal. There’s no telling where this argument could take Aleynikov, but if it works, it could turn out that Goldman’s alleged trade secrets aren’t really secret at all. That could blow up Goldman’s trading profits. It’s all very interesting stuff — and that was just the first day of trial.
Ottawa, Canada (CNN) — Scrupulously silent in public but colorfully candid in person, the former head of Canada’s spy agency didn’t hold back in a meeting with a senior U.S. State Department official in July 2008. It was a meeting that he had assumed would stay private and the content classified.
According to the cable marked “secret,” but now part of the WikiLeaks document dump, Jim Judd admits his spy agency, the Canadian Security Intelligence Service, or CSIS, was “increasingly distracted from its mission by legal challenges that could endanger foreign intelligence-sharing with Canadian agencies.”
According to the cable, he complains about Canadians having an “Alice in Wonderland’ world view and goes on to describe Canadian courts “whose judges have tied CSIS ‘in knots,’ making it ever more difficult to detect and prevent terror attacks in Canada and abroad.”
“The situation, he commented, left government security agencies on the defensive and losing public support for their effort to protect Canada and its allies,” the U.S. cable says.
A Canadian court had earlier that year agreed to release a videotaped interrogation of Guantanamo detainee Omar Khadr, who recently pleaded guilty to murder in a special military hearing at Guantanamo.
Of the video release, the cable states that Judd told the State Department that “a videotaped recording of a tearful Omar Khadr at the military prison at Guantanamo Bay would trigger “knee-jerk anti-Americanism” and “paroxysms of moral outrage, a Canadian specialty.”
Judd is now retired.
The formerly secret WikiLeaks cable has sent Canada into damage control. Canadian Foreign Affairs Minister Lawrence Cannon said at a press conference Monday that “these leaked documents that pertain to Canada are in my view … not something that will harm our relations. I do find it deplorable, though, that documents are leaked in this fashion”
U.S. Secretary of State Hilary Clinton contacted Cannon over the weekend to brief him on the Canadian disclosures in the WikiLeaks documents. WikiLeaks says it has more than 2,000 documents that pertain to Canada, most of which have not yet been released.
Intriguingly, this cable from July 2008 refers to Canada’s spy agency agreeing to open a channel to Iran’s Intelligence service, but added that it was something Judd has not yet “figured out.”
Also in the cable is a reference to Judd saying his spy agency “responded to recent, non-specific intelligence on possible terror operations by ‘vigorously harassing’ known Hezbollah members in Canada.”
Seoul, South Korea (CNN) — South Korea’s spy chief said Wednesday that there is a high chance that North Korea will attack again following a strike last month that has led to renewed tensions on the peninsula, the Yonhap news agency reported.
South Korean lawmaker Rhee Beum-Kwan quoted National Intelligence Service chief Won Sei-hoon as making the prediction, Yonhap reported.
“North Korea pushed for reckless actions as internal complaints grew over its hereditary power succession and economic situations worsened,” the lawmaker quoted Won as saying.
Meanwhile, South Korea and the United States wrapped up joint military exercises on the Yellow Sea, while South Korea carried on with plans for artillery firing drills next week amid simmering tensions with Pyongyang.
The live fire drills are a routine monthly exercise aimed at securing the safety of ships in the area, the South’s Joint Chiefs of Staff told CNN. They are scheduled to begin Monday.
Officials said the planned firing drills are expected to take place in waters around the Korean peninsula, including those close to the Yellow Sea border, Yonhap reported.
But the Yellow Sea locations are not close to Yeonpyeong Island, where four South Koreans were killed by North Korean shelling on November 23, Yonhap reported officials as saying.
North Korea has said the South provoked the attack, which also left 18 people injured, because shells from a South Korean military drill landed in the North’s waters.
Meanwhile, South Korea and the United States are reportedly in talks about more joint naval exercises for this year or next year.
“We have been in consultations with the U.S. to carry out several rounds of joint military drills to deal with a limited provocation by the enemy,” said Col. Kim Young-cheol of the South’s Joint Chiefs of Staff, Yonhap reported. “The timing and participating military assets have not been decided yet.”
North Korea warned Tuesday that the military drills by the United States and South Korea could lead to “all-out war any time.” The firmly worded message was published by North Korea’s state-run KCNA news service.
“If the U.S. and the South Korean war-like forces fire even a shell into the inviolable land and territorial waters of the DPRK, they will have to pay dearly for this,” the news service report said. The DPRK is the acronym for North Korea’s formal name: the Democratic People’s Republic of Korea.
The U.S. State Department announced Wednesday that Secretary of State Hillary Clinton will meet with ministers from South Korea and Japan next Monday to discuss the Korean crisis, among other issues.
That encounter comes amid calls from China for an emergency meeting of the six major powers involved in talks about the Korean peninsula. The six countries are China, Russia, North Korea, South Korea, Japan, and the United States.
South Korea has said it doesn’t think the time is right for a resumption of the six-party talks, but promised it would “bear in mind” the Chinese proposal.
In Washington, a State Department official said the United States is consulting with its allies but that resuming the six-party talks “cannot substitute for action by North Korea to comply with its obligations.”
The Japanese government said one of its envoys is in Beijing, China, for discussions on the situation.
As North Korea’s largest trading partner and strongest ally, China has been urged by the international community to confront the crisis.
White House Press Secretary Robert Gibbs said Tuesday that China has “a duty and an obligation to press upon the North Koreans that their belligerent behavior has to come to an end.”
A top Chinese envoy met with South Korea’s president over the weekend, and a top North Korean official arrived in Beijing, China, on Tuesday, the first visit to China by a North Korean official since the shelling of Yeonpyeong Island.
CNN affiliate YTN reported that Choe Tae Bok, chairman of North Korea’s Supreme People’s Assembly, is on a five-day visit to China.
Amid the international attempts to avert warfare, the strident and saber-rattling rhetoric between the Koreas remained the region’s background noise.
This comes after South Korean President Lee Myung-bak warned this week that North Korea would face severe consequences if it launched another military attack across its southern border.
“If the North commits any additional provocations against the South, we will make sure that it pays a dear price without fail,” Lee said in a nationally televised address.
CNN’s Tim Schwarz contributed to this report.
