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What an NDA really, really means

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I woke up this morning and was thinking about Non-Disclosure Agreements (NDA) and what they really mean to me. I am not an attorney so the thickly worded legal mumbo jumbo used sometimes escapes me, but the common sense and spirit of these agreements is rather easy to comprehend.

I’ve signed NDAs, worked under them and abided by them many, many times. An NDA is like somebody whispering in my ear: shut up. Don’t talk about the contract, don’t talk about who the contract is with, certainly don’t talk about the specific or even general work being done, don’t talk about anything even remotely related to the work. The actual code I’m working on should be treated like a bomb that will blow up if anybody else outside of the parties specifically listed in the NDA sees, smells or touches it. Just don’t talk about it, period.

If one creates this much care, concern and control over the NDA, then there is no way that h/she could ever break the NDA. Certainly blogging about it would be a major no-no. Writing a news article about the technologies used in the project? Definitely a problem. Readers of my recent entry about Troutgirl’s firing from Friendster (and sorry to those who are sick of this story that I’m sort of spilling this into two entries) will see where I’m going with this.

One thing for certain these days is that I’d make sure with any new job that the blogger identify that h/she has blog(s) and make sure, in writing and in advance, that these blogs will not present any problem.  If this means running the content through the legal department for approval, then so be it.

This way if the employee is terminated over something written in his/her blog, there could be some more likely recourse for the employee. Also, it will put the employer on notice that this blogging activity exists and there are no surprises all the way around. I realize this doesn’t protect any future blogging or blog entries, but it does give the company and legal department a chance to review the existing content and return with any concerns about existing content that would be unacceptable or problematic in the future.

I remember back in 1997 basically receiving a cease and desist letter from the insurance company I worked for because I was collecting emails and corresponding with clients (insureds) via email. They told me that this violated their internal policies and procedures for communication with insureds “because email was insecure” and that I should stop right away or it could be grounds for termination of my appointment with the company. Of course, our agency stopped the practice right away. The funny thing is several years later, the company was encouraging agencies to collect email addresses and these days if we don’t communicate with clients via email, it’s considered that we’re not providing good service. Of course I never have received any sort of retraction for that letter, but I have plenty of internal bulletin notices which refute everything written in that letter to me. My how times change!

An employee-employer relationship is a contract and IMO the employee has at least an ethical obligation (though perhaps not a legal obligation, again I’m not an attorney) to make sure they disclose anything that might negatively (or positively) impact the company. In my case with the insurance stuff I disclosed to them what I was doing with email and my website and their response was: stop doing it. I complied. They didn’t just find out what I was doing, I notified them what I was doing and asked for their approval (which at the time I didn’t receive).

Who knows, the employer might actually pay the employee more for blogging about the company. Or if h/she comes up with some clever marketing strategy through blogs, blogging and/or other web-related activity this might involve a raise in pay as well.

Blogging about one’s job is, after all, a form of subtle to not so subtle (for evangelists like Microsoft’s Robert Scoble) advertising. I would think most companies would like the idea of essentially free advertising, so long as it doesn’t violate trade secrets or something which they are not yet ready to publically advertise. Companies wouldn’t ask for NDAs if they didn’t want to keep what they were working on hush-hush. 

Always read what you sign, ask for clarification when you don’t understand something and comply with what you agree to. NDA, insurance contract, any contract.

A slightly different version of this entry originally appeared at Things that … Make You Go Hmm

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