Tools, updated 11 oct 2026
Can it be sold? Check before a buyer does.
Data often fails to sell on rights rather than on price. These are the questions a buyer's counsel asks (27 in all, shown for your kind of data), and the terms of 18 business systems the data usually comes out of. For each question, pick whether the good answer or the red flag describes you, or leave it open until you have checked. Every item links to its source; the full reference is on the rights page.
Where it lives today
Each system's own terms decide how the data can leave it. Pick the ones it comes from.
2
Blocks a sale until settled
How did the data leave each software system: a built-in export run by your own admin, or an app or script using the vendor's API?
Several vendors now forbid using API-obtained data for AI training or bulk export, so data pulled the wrong way can be tainted even if the company owns it.
3 sources
- Slack API Terms of Service(effective 2025-10-10)
“(A) use API Data to train a large language model;”
- Zendesk Developer Terms(effective 2025-08-12)
“including creating, training, or improving any general AI model, such as, but not limited to, a large language model”
- Xero Developer Platform Terms and Conditions(last updated 2025-12-04)
“API Data cannot be used to train, fine tune, adapt, or enhance any AI Models.”
- Slack API Terms of Service(effective 2025-10-10)
3
Blocks a sale until settled
Does any of the data belong to or describe your customers, and do your customer contracts and data processing agreements allow using it for anything other than serving them?
Where you hold customer data as their processor you may use it only on their instructions, and a processor that decides its own purposes becomes a controller in breach.
3 sources
- GDPR Article 28(3)(a) and 28(10)(read 2026-10-11)
“if a processor infringes this Regulation by determining the purposes and means of processing, the processor shall be considered to be a controller in respect of that processing.”
- Frankfurt Kurnit (Daniel M. Goldberg), Selling Company Data For AI Training: What To Know Before You Say Yes, Legal 500(2026-10-06)
“Review customer, partner, vendor, and data license agreements, identify data held as a service provider or processor, and review platform terms for the systems the data will be extracted from.”
- Venable: Contracting for AI Model Training(2026-06-05)
“training data can be "deidentified" and still contain confidential or valuable information.”
- GDPR Article 28(3)(a) and 28(10)(read 2026-10-11)
4
Blocks a sale until settled
Does the data contain other companies' confidential information, such as partner documents, pricing, roadmaps or anything shared under an NDA?
NDAs usually limit use to a stated purpose and survive termination, so passing counterparties' material to an AI lab invites breach of contract and trade secret claims.
1 source
- Frankfurt Kurnit (Goldberg), Legal 500(2026-10-06)
“Consider privileged material, HR and personnel files, payroll and tax records, health and benefits information, union-related communications, customer and partner confidential information, licensed data, and data from regulated systems.”
- Frankfurt Kurnit (Goldberg), Legal 500(2026-10-06)
5
Blocks a sale until settled
Does the data include personal information of employees, contractors or job applicants in California, and have they been told about the sale and given a way to opt out?
The CCPA exemption for employee data ended on 1 January 2023, so licensing staff data for money is a CCPA sale with notice and opt-out duties.
2 sources
- California Consumer Privacy Act (CPPA statute text, effective 01/01/2025), section 1798.145(m)(posted January 2025)
“(4) This subdivision shall become inoperative on January 1, 2023.”
- California Consumer Privacy Act, section 1798.140 (definition of sell)(posted January 2025)
“"Sell," "selling," "sale," or "sold," means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating ... a consumer's personal information by the business to a third party for monetary or other valuable consideration.”
- California Consumer Privacy Act (CPPA statute text, effective 01/01/2025), section 1798.145(m)(posted January 2025)
6
Blocks a sale until settled
For staff in the EU or UK, what legal basis lets you reuse the personal data in their work (messages, documents, code history, recordings) for a sale, and is that new purpose compatible with why you collected it?
Employee consent is rarely valid because of the power imbalance, and a new purpose must pass the GDPR compatibility test or have its own basis.
2 sources
- EDPB Guidelines 05/2020 on consent, section 3.1.1(2020-05-04 (older, still current))
“Given the dependency that results from the employer/employee relationship, it is unlikely that the data subject is able to deny his/her employer consent to data processing without experiencing the fear or real risk of detrimental effects as a result of a refusal.”
- GDPR Article 6(4)(read 2026-10-11)
“the controller shall, in order to ascertain whether processing for another purpose is compatible with the purpose for which the personal data are initially collected, take into account, inter alia: any link between the purposes ... the context in which the personal data have been collected, in particular regarding the relationship between data subjects and the controller”
- EDPB Guidelines 05/2020 on consent, section 3.1.1(2020-05-04 (older, still current))
7
Blocks a sale until settled
For customers or staff in Canada, has each person consented to this new use, or will the data be anonymised to the Canadian standard before it leaves? For Quebec, is the privacy impact assessment done and the written agreement ready?
Canada's federal privacy law has no legitimate interest ground: a new use or disclosure needs the person's consent, and only data with no serious possibility of re-identification is outside it. Quebec adds an impact assessment and a written agreement before personal information leaves the province.
3 sources
- PIPEDA Schedule 1, clause 4.2.4: a purpose not previously identified needs the individual's consent(read 2026-10-18)
“When personal information that has been collected is to be used for a purpose not previously identified, the new purpose shall be identified prior to use. Unless the new purpose is required by law, the consent of the individual is required before information can be used for that purpose.”
- OPC, PIPEDA Findings #2026-001 (Loblaw, PC Optimum): the standard for anonymized information(read 2026-10-18)
“The term "made anonymous" is not defined in PIPEDA. ... We therefore find that for information to be considered anonymized for the purpose of Principle 4.5.3, the organization must take steps to ensure that there is no serious possibility that the information retained may be reidentified, either alone or in combination with other available information. ... Based on the data points that Loblaw described, we find that stripping accounts of names, phone numbers and email addresses alone is insufficient for Loblaw to demonstrate that the data it retains is anonymized.”
- Quebec private sector Act, section 17: privacy impact assessment before communicating information outside Quebec(read 2026-10-18)
“Before communicating personal information outside Québec, a person carrying on an enterprise must conduct a privacy impact assessment. ... The information may be communicated if the assessment establishes that it would receive adequate protection, in particular in light of generally recognized principles regarding the protection of personal information. The communication of the information must be the subject of a written agreement that takes into account, in particular, the results of the assessment and, if applicable, the terms agreed on to mitigate the risks identified in the assessment.”
- PIPEDA Schedule 1, clause 4.2.4: a purpose not previously identified needs the individual's consent(read 2026-10-18)
8
Blocks a sale until settled
Has personal data been removed to the EU anonymisation standard, and who tested it?
Under the EDPB's draft 2026 guidelines data is anonymous only if no one can be singled out, linked or inferred, and the anonymisation process itself needs a legal basis; pseudonymised data stays personal data.
Not final: Guidelines 02/2026 are a draft under consultation until 30 October 2026, not final.
3 sources
- DLA Piper Privacy Matters: EU EDPB publishes draft guidelines on anonymisation(2026-08-13)
“the process of anonymisation itself remains subject to the GDPR and must comply with applicable legal bases, transparency obligations and accountability requirements.”
- EDPB public consultation: Guidelines 02/2026 on Anonymisation(consultation 2026-07-08 to 2026-10-30)
“Such comments should be sent on 30 October 2026 at the latest using the provided form.”
- The Next Web: Google and Spirit Airlines data, ombudsman report(2026-10-09)
“Spirit has hired Tonic.ai to deidentify that unstructured data, according to the report. The agent must file a certification with the court before every transfer. ... The buyer must publicly commit not to try to reidentify the data. It also may not pass it on unless the recipient makes the same commitment. ... The potential privacy losses or costs to consumers have been eliminated or mitigated.”
- DLA Piper Privacy Matters: EU EDPB publishes draft guidelines on anonymisation(2026-08-13)
9
Blocks a sale until settled
Does any data come from health care, health insurance, or work you did for a health client under a business associate agreement?
Protected health information can be sold only if de-identified by HIPAA safe harbor (18 identifier types removed, no actual knowledge) or expert determination (very small risk), and a business associate agreement may forbid it entirely.
3 sources
- 45 CFR 164.514(a)-(b)(read 2026-10-11)
“Health information that does not identify an individual and with respect to which there is no reasonable basis to believe that the information can be used to identify an individual is not individually identifiable health information.”
- 45 CFR 164.514(b)(2)(i)(P)-(Q)(read 2026-10-11)
“Biometric identifiers, including finger and voice prints; (Q) Full face photographic images and any comparable images”
- Foley & Lardner: AI Contracts in Health Care(2025-06-25)
“the BAA likely governs as a result of the typical conflict language in the BAA favoring the BAA when PHI is at issue.”
- 45 CFR 164.514(a)-(b)(read 2026-10-11)
10
Blocks a sale until settled
Does the data include text, images, video or files created by others that you do not own (articles, reports, books, customer uploads, screenshots of other products)?
In September 2026 the Third Circuit held that copying Westlaw headnotes to train a competing AI tool was not fair use, so third-party content inside an archive carries real infringement risk for the buyer and the holder's warranty.
2 sources
- LawNext: 3rd Circuit rules for Thomson Reuters against ROSS(2026-09-30)
“ruled in favor of Thomson Reuters on the two primary issues that were before it – copyrightability of the Westlaw headnotes and fair use.”
- Terms.Law: AI training data licensing(undated)
“That the use of the data for training as specified in the agreement does not infringe a third party's copyright”
- LawNext: 3rd Circuit rules for Thomson Reuters against ROSS(2026-09-30)
11
Blocks a sale until settled
What did your privacy policy, terms of service and employee handbook say about sharing or selling data at the time it was collected?
The FTC's position is that a company cannot quietly change its terms to allow AI training on data collected under earlier promises, and in bankruptcy a policy against transfer blocks a sale without court approval.
2 sources
- FTC Technology Blog: AI (and other) Companies: Quietly Changing Your Terms of Service Could Be Unfair or Deceptive(2024-02-13 (older, still the FTC's stated position))
“A business that collects user data based on one set of privacy commitments cannot then unilaterally renege ... It may be unfair or deceptive for a company to adopt more permissive data practices ... through a surreptitious, retroactive amendment to its terms of service or privacy policy.”
- 11 U.S.C. 363(b)(1)(read 2026-10-11)
“if the debtor in connection with offering a product or a service discloses to an individual a policy prohibiting the transfer of personally identifiable information about individuals to persons that are not affiliated with the debtor ... then the trustee may not sell or lease personally identifiable information to any person unless– (A) such sale or such lease is consistent with such policy; or (B) after appointment of a consumer privacy ombudsman”
- FTC Technology Blog: AI (and other) Companies: Quietly Changing Your Terms of Service Could Be Unfair or Deceptive(2024-02-13 (older, still the FTC's stated position))
13
Blocks a sale until settled
Does the data include controlled technical information, such as semiconductor designs, aerospace or defence engineering, or advanced encryption source code?
Releasing controlled technology or source code to a foreign national, even inside the US, is a deemed export under the EAR, and AI labs employ foreign nationals and use offshore compute.
2 sources
- 15 CFR 734.13(b)(read 2026-10-11)
“Any release in the United States of "technology" or source code to a foreign person is a deemed export to the foreign person's most recent country of citizenship or permanent residency.”
- GitLab Subscription Agreement, section 12.1(read 2026-10-11)
“Customer shall not export, reexport, or transfer the Controlled Subject Matter except as authorized by these laws and regulations.”
- 15 CFR 734.13(b)(read 2026-10-11)
14
Blocks a sale until settled
Is the buyer, or anyone it may pass the data to, a foreign person, and does the dataset contain US sensitive personal data above the bulk thresholds?
The DOJ Data Security Program bans data brokerage of bulk US sensitive personal data to countries of concern and requires a contractual onward-transfer ban and violation reporting for any other foreign buyer.
2 sources
- 28 CFR 202.205 (bulk)(read 2026-10-11)
“(b) Biometric identifiers collected about or maintained on more than 1,000 U.S. persons; ... (d) Personal health data collected about or maintained on more than 10,000 U.S. persons; (e) Personal financial data collected about or maintained on more than 10,000 U.S. persons; (f) Covered personal identifiers collected about or maintained on more than 100,000 U.S. persons”
- 28 CFR 202.302(a)(read 2026-10-11)
“no U.S. person ... may knowingly engage in any transaction that involves any access by a foreign person to government-related data or bulk U.S. sensitive personal data and that involves data brokerage with any foreign person that is not a covered person unless the U.S. person: (1) Contractually requires that the foreign person refrain from engaging in a subsequent covered data transaction involving data brokerage of the same data with a country of concern or covered person; and (2) Reports any known or suspected violations”
- 28 CFR 202.205 (bulk)(read 2026-10-11)
15
Fixable before a sale
Is any of it data or content you licensed from someone else, such as purchased contact lists, research reports, stock media, fonts or design kits?
Licences for bought data and media usually forbid resale or sublicensing, so it usually cannot be passed on to a lab without the licensor's consent.
2 sources
- Frankfurt Kurnit (Goldberg), Legal 500(2026-10-06)
“Review customer, partner, vendor, and data license agreements, identify data held as a service provider or processor, and review platform terms for the systems the data will be extracted from.”
- Terms.Law: AI training data licensing(undated, read 2026-10-11)
“The licensor agrees to deliver, at the time of license, a structured record of the data's origin”
- Frankfurt Kurnit (Goldberg), Legal 500(2026-10-06)
16
Fixable before a sale
Do the records include staff discussing pay, working conditions or union matters, or is any workforce covered by a collective bargaining agreement?
US employees have a protected right to act together on working conditions, union-related communications are a category counsel advise excluding, and a bargaining agreement may itself restrict a sale.
Reasoned, not stated by a source: No source found applying Section 7 directly to the sale of employee communications; the link is an inference from the protected-activity right and counsel's exclusion advice.
2 sources
- National Labor Relations Act section 7, 29 U.S.C. 157(read 2026-10-11)
“Employees shall have the right to self-organization, to form, join, or assist labor organizations”
- Frankfurt Kurnit (Goldberg), Legal 500(2026-10-06)
“Where employees are unionized, the collective bargaining agreement may restrict the sale, and the company may have bargaining obligations.”
- National Labor Relations Act section 7, 29 U.S.C. 157(read 2026-10-11)
17
Fixable before a sale
If you have a works council in the Netherlands or Germany, has it been consulted about processing staff data for this sale, and has it agreed where required?
Dutch law requires works council consent for any arrangement on processing employees' personal data, and German works councils co-determine technical systems that can monitor staff behaviour or performance.
Reasoned, not stated by a source: Whether a one-off export and sale is an 'arrangement' (regeling) under WOR 27(1)(k) or a monitoring system under BetrVG 87(1)6 is not settled in the sources read; the 'void' consequence refers to WOR article 27(5), not re-read. A question for a lawyer.
2 sources
- Wet op de ondernemingsraden (Dutch Works Councils Act) article 27(1)(k)(read 2026-10-11)
“De ondernemer behoeft de instemming van de ondernemingsraad voor elk door hem voorgenomen besluit tot vaststelling, wijziging of intrekking van: ... k. een regeling omtrent het verwerken van alsmede de bescherming van de persoonsgegevens van de in de onderneming werkzame personen”
- Betriebsverfassungsgesetz (German Works Constitution Act) section 87(1) no. 6(read 2026-10-11)
“Der Betriebsrat hat, soweit eine gesetzliche oder tarifliche Regelung nicht besteht, in folgenden Angelegenheiten mitzubestimmen: ... 6. Einführung und Anwendung von technischen Einrichtungen, die dazu bestimmt sind, das Verhalten oder die Leistung der Arbeitnehmer zu überwachen;”
- Wet op de ondernemingsraden (Dutch Works Councils Act) article 27(1)(k)(read 2026-10-11)
18
Fixable before a sale
For US consumer or staff data, does the de-identification meet the CCPA definition, including a public commitment and contract terms binding the buyer?
CCPA 'deidentified' data needs three things from the business holding it: reasonable technical measures, a public no-re-identification commitment, and contracts making recipients comply.
1 source
- California Civil Code 1798.140(m), CPPA statute text(posted January 2025)
“"Deidentified" means information that cannot reasonably be used to infer information about, or otherwise be linked to, a particular consumer provided that the business that possesses the information: (1) Takes reasonable measures to ensure that the information cannot be associated with a consumer or household. (2) Publicly commits to maintain and use the information in deidentified form and not to attempt to reidentify the information ... (3) Contractually obligates any recipients of the information to comply with all provisions of this subdivision.”
- California Civil Code 1798.140(m), CPPA statute text(posted January 2025)
19
Fixable before a sale
Does the data include legal advice, litigation material, or trade secrets (yours or other companies')?
Disclosing privileged communications to a buyer can waive privilege, and counsel list privileged material first among categories to exclude.
Reasoned, not stated by a source: The waiver point is general legal knowledge, not quoted from a source read.
1 source
- Frankfurt Kurnit (Goldberg), Legal 500(2026-10-06)
“Exclude high-risk data entirely rather than relying on de-identification. Consider privileged material, HR and personnel files, payroll and tax records, health and benefits information, union-related communications, customer and partner confidential information, licensed data, and data from regulated systems.”
- Frankfurt Kurnit (Goldberg), Legal 500(2026-10-06)
20
Fixable before a sale
Does any lender hold security over the company's assets or IP, or have a right to approve asset sales or IP dispositions?
Venture and bank loans commonly include a negative pledge on IP and an asset-sale covenant that lenders watch for disposals of material IP.
1 source
- DLA Piper: Ensuring positive outcomes with negative pledges in venture lending(2024-09-17 (older))
“agrees not to grant a security interest in its intellectual property to anyone else (lenders watch the disposition or asset sale covenant for borrowers using it to dispose of material intellectual property)”
- DLA Piper: Ensuring positive outcomes with negative pledges in venture lending(2024-09-17 (older))
22
Fixable before a sale
Has any sample of the data already been shown to a buyer or broker before this rights review?
A sample is itself a disclosure, so it carries every problem in this checklist before any contract protects you.
1 source
- Frankfurt Kurnit (Goldberg), Legal 500(2026-10-06)
“Do not share sample data before this review, since a sample itself could be a disclosure.”
- Frankfurt Kurnit (Goldberg), Legal 500(2026-10-06)
23
Disclose to the buyer
Has a software vendor already used this content to train its own AI (for example Atlassian since August 2026, GitHub Copilot interactions, HubSpot, ServiceNow Now Assist, Figma)?
It does not stop a sale, but a buyer paying for exclusivity will want to know whether a platform vendor already holds a model trained on the same material.
2 sources
- Atlassian Trust: Data contribution(change effective 2026-08-17)
“If your Atlassian organization has an active Enterprise plan, you can opt-out of metadata contribution. If your Atlassian organization’s highest active plan is Free, Standard, or Premium, metadata contribution is always on, and you’re not able to opt-out. ... every customer has the option to opt out of contributing in-app data.”
- HubSpot Customer Terms of Service 5.3.1(last modified 2026-09-16)
“We may also use Customer Data to train our AI models in compliance with our obligations under the Agreement.”
- Atlassian Trust: Data contribution(change effective 2026-08-17)