Can we send our customers' documents to an outside AI test?

Much of the paper on an order desk or in an engineering inbox started with a customer: the PO, the drawing attached to it, the spec sheet, the pricing they negotiated. It is in your files because they trusted you with it, and much of it came with terms: a supply agreement, an NDA signed before the first quote, conditions printed on the back of the PO or linked from it.

Trade secret rules speak of who controls information, not only who created it. Article 39 of TRIPS, the WTO treaty that sets minimum intellectual property rules for its members, requires members to let a person stop information lawfully within their control from being disclosed or used without consent in ways contrary to honest commercial practices, and a footnote counts breach of contract and breach of confidence among them. The secret must be kept by reasonable steps under the circumstances, taken by the person lawfully in control of it. When a customer's drawing sits in your files, the steps you take with it are part of how it stays secret.

So the question is never only whether a tester will look after the files. It is whether sending them fits what you told the customer you would do.

Confidentiality clauses vary, but a few kinds settle most cases. Look for them in the supply agreement, any NDA with the customer and the PO's own terms. If a customer's PO carries its own conditions and your acknowledgment carries yours, which ones bind is a question for counsel; until you know, read the customer's as if they apply.

• A purpose limit. Information may be used only to quote, make or supply the customer's goods. Testing a draft of your own internal work may not be that purpose, so the exact words matter.
• Who may see it. Often employees and advisers who need to know and are bound by similar duties. Whether an outside tester fits turns on those words.
• Consent before any outsider. Some clauses require the customer's written consent before anything goes to a subcontractor or other third party.
• Rules for drawings. No copies, no use beyond making the customer's parts, return on request. Title block legends often say the same.
• Return or destroy, and notice. What happens to copies when the work ends, and whether you must tell the customer about any disclosure outside the terms.

A legend calling a drawing proprietary, or a spec stamped confidential, is the customer telling you how it treats that information. The Uniform Trade Secrets Act, the model law that most states have adopted in its 1979 or 1985 form according to WIPO's record of it, treats information as a trade secret only while it is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. WIPO's own guidance names NDAs signed by employees and business partners, and control over who can reach important documents, among those steps. Your NDA with that customer may be one of its steps.

The same act counts as misappropriation the disclosure or use of another's trade secret, without consent, by someone who knew or had reason to know it reached them under circumstances giving rise to a duty to keep it secret or limit its use. A supplier that received a drawing under the customer's NDA knows the circumstances it came under. Whether a given test would cross that line is for counsel to say, but it shows why the customer's consent is the real question.

Redaction helps little here. Taking the customer's name off a drawing leaves the geometry, tolerances, materials and process notes, and those are what the customer is protecting.

Some commercial drawings are also controlled under the Export Administration Regulations. They count visual inspection of controlled technology by a foreign person as a release (15 CFR 734.15), and a release in the United States to a foreign person as a deemed export to that person's country (734.13). So where a tester's people are, and who they are, matters for a controlled drawing. If a drawing carries an export classification or a customer's export notice, leave it out of any test.

Customer documents name people. A buyer's name, work email and phone on a PO are usually what the job reads. Others ride along: the end customer's name and home address on a drop-ship order, a signature on a delivery receipt, a card number in an order note, a portal login a customer typed into an email.

State law can reach that information whatever a tester promises. New York's data security law, General Business Law 899-bb, applies to any person or business that owns or licenses computerized data including private information of a New York resident. Section 899-aa defines private information as information identifying a person combined with a Social Security number, a driver's license number, an account or card number that could be used to reach the account, biometric data, or medical or health insurance information, and separately a user name or email with its password. Among the safeguards the law lists is selecting service providers able to maintain appropriate safeguards and requiring those safeguards by contract, and a small business's program is judged against its size, its activities and the sensitivity of what it holds. Whether this law or another state's applies to you is for counsel.

The FTC's guide to protecting personal information tells a business to track it by talking with sales, IT, human resources, accounting and outside service providers. For a test set, ask whoever handles each customer what that customer's documents tend to carry. Unlike a drawing, a person's details redact well.

Each answers a different worry, and none answers all of them:

• An NDA with the tester limits what the tester may do with the copies. Make it at least as strict as what you promised the customers whose papers are in the set: the same purpose limit, no further disclosure, return or destruction, and notice. It never stands in for a customer's consent where a contract requires one.
• Redaction works when the sensitive part is a detail the job doesn't read, such as a home address, a card number or a person's name. It fails when the sensitive part is the substance: a drawing, a formula, a negotiated price schedule.
• Look-alikes copy a customer's layout, field positions and awkward habits with invented values, so nothing of theirs leaves. For drawings, a look-alike can keep the title block and the kinds of callouts your team reads, with none of the customer's design.
• Leaving it out is right for a customer whose terms need consent you don't have yet, and for anything export-classified.

One person signs off on the final set, and it shouldn't be whoever wants the test most. They decide with the people who know each part: the account owner, who knows what was promised to that customer; whoever keeps the contracts, often the controller or counsel; quality or engineering for drawings and specs; and whoever looks after IT or privacy for personal information. New York's law makes a similar point for data security, listing among its safeguards the naming of one or more employees to coordinate the program.

Keep a release log on your side, one line per document: the customer, the clause checked, the decision (send, redact, replace with a look-alike, ask first, keep out), who decided and when. Your reviewer, the person on your team who knows the work best, chooses which documents would make a good test; the person who signs off decides which of them may leave.

Ask first when a contract or NDA requires written consent for any outside party, when the customer's terms limit its drawings to making its parts, when a document is marked proprietary or confidential by the customer, or when you would be uneasy telling the customer about it afterwards. Let the account owner make the request in writing, naming the documents, the purpose, who receives copies, the NDA that covers them and what happens to them when the test ends. Offer look-alikes as the alternative, and take a no as an answer.

Our free AI proof of concept works either way. It runs on copies of 20 to 30 documents your team already finished, sent only once an NDA is signed, and nothing touches a live system. Where a customer's documents can't leave, we build look-alikes with you. Your reviewer judges the drafts against what your team actually did, and a person on your team decides and sends anything that goes out. None of this is legal advice: what your contracts and the laws that reach your files allow is your counsel's call.