Questioning the Legality of Non-Disclosure Agreements
Tech news commentator John C. Dvorak recently made an interesting comparison in challenging the validity of NDA's on This Week in Tech podcast episode 231 (omitted text was comprised of verbal stutters/repetitions as the impassioned speaker struggled to find his words):
John C. DvorakWell you know I think NDA's should be illegal, . . . how does anybody sign away their constitutional rights with a contract? I mean, . . . if an NDA's legal, why can't I just go to Africa and find some let's say BLACK people, and have them sign away their constitutional rights in a contract and then they're, they're slaves? I mean, when is this gonna end? It's bogus.
His extreme example points out the very real slippery slope in allowing ANY contracts that trump constitutional rights, and it leads to a couple of essential questions:
1) How can companies get away with writing such contracts in the first place?
Part of the disconnect is in what this country says it is and what it really is. We celebrate a tradition of individualism, rebellion from tyrants, and freedom and equality for all. In reality, we are capitalists. In a capitalist society just about anything can be bought and sold for the right price, including your rights.
Although corporations are "people," in reality they are more like sociopathic super-people with far more rights and protections than you or I (and they act as shelters for real people who also have more rights than you or I). These rights have been and continue to be purchased and ensured with political campaign contributions, high level networking, and government lobbying.
But there are a hell of a lot more of us than them, right? What about the power of the people? That brings us to our second question:
2) Why the hell are so many of us okay with signing our rights away to companies?
For most of us, the United States IS still a nation of individuals. Our singular voices are small and our pockets shallow in comparison to the super-people. Our ideals are heavily diversified even among many local communities, thus we have trouble coming together to consolidate our power as the companies do. The internet nullifies this effect somewhat, but we still have difficulty gaining large enough numbers to effect real change as causes are too narrow in focus or too exclusionary to interest large numbers of the public.
There are many idealist activists who live and breathe "the cause" but have little desire to compromise with the mass public, demonstrating they prefer no change to insufficient change. They are like furiously spinning gears that are unable to connect with other gears to create a moving motor. They would rather try to move a mountain than to move themselves around it. They fail to realize that as with biological evolution, the speed of social evolution is retarded in greater populations, so they never think about approaching their goals in smaller, slower steps (I suspect that if they changed their modes of thinking to this manner, then they'd find change could be effected a fair amount faster, and I look to the pacing of tech companies for a working model of how to plan ahead and mete out a path to those changes at an acceptable pace in the present. I also look to tech companies for many examples of failed products adopted by visionaries that the mass public was not yet ready for).
We are all in some way aware of the extreme power divide minimally checked capitalism has created in our society. We know that corporations and other persons of power will typically and naturally take advantage of their position. We are aware that in most cases, we are more replaceable to a company as a customer or employee than that company is to us as a provider of necessary goods/employment. Few people fully realize their right to cross out portions of contracts they do not agree with, and even then a company has every right to force your hand by rejecting such a contract.
Because legal access is another power play individuals often lose, there is a clear lack of protection and/or ability to recoup damages for individual employees/consumers that makes it easy for companies to pressure employees/consumers to sign whatever paperwork is given them, with the threat of denying employment and/or modern services if the contracts are not signed. Thus you can see that although the word "contract" suggests a harmonious agreement between two parties, it is often anything but.
As a result of all these factors in combination with horrifically long legalese, most United States citizens don't bother to even skim the contracts they regularly sign. I submit that we are okay with signing away our freedom of speech via an NDA, and that we are okay with signing away any other number of rights or privileges that leave us at an extreme disadvantage, because we don't feel that we have any decent alternative choice. In effect, we are monopolized into it.
If being "American" is still defined by a core set of values and beliefs, then NDA's are unquestionably UNAMERICAN. Although it will be slow movement, if you care at all about your rights and the rights of your loved ones, then one of the best ways you can effect positive change is to start with yourself. I call upon anyone asked to sign an NDA to stand up and patriotically refuse. If you are faced with a written contract, read it in full and don't sign it unless you truly are in agreement with the terms. Cross out or write in items you feel strongly about because maybe "they" WILL accept it. And finally, support organizations who are taking digital contracts, "Terms of (Ab)use," to task, such as the EFF.
- written by VictoryGrey at dysamoria.com
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Arlington, Virginia, United States