…from those of you versed in non-disclosure agreements, the law, or both (with a particular nod at polyamarie)…
Suppose a person has signed a blanket, far-reacing non-disclosure agreement with a company. Does that NDA protect the company from disclosure of criminal activities on the part of that company? Does it matter if said criminal activities are a matter of civil tort (eg, copyright theft; exposing the credit card numbers, names, and addresses of thousands of customers), criminal activity (identity theft, fraud), or both? In short, if a person reveals ongoing criminal activity on the part of a company, can that person be sued for violation of the NDA?
Does the situation change if that person has, for example, screen shots of an exposed database of credit card numbers, or, say, a tape recording of company management talking about the identity theft and copyright violation?
(Note that this post is friends-only, for obvious reasons. And no, I’m not the one under the NDA; I’m enquiring on behalf of someone else.)
I’m not sure if this is a perfect match, but http://www.whistleblowers.org/ might be a good place to start looking for the legal boundaries to this problem.
I’m not sure if this is a perfect match, but http://www.whistleblowers.org/ might be a good place to start looking for the legal boundaries to this problem.
I’m not in a position to know for sure but I can’t imagine that an NDA can be used against someone to cover up criminal activity.
In addition it seems to be a standard practice in American law that if you know of a criminal act and don’t report it you are an accomplice to the crime.
Finally, I believe someone turning over evidence of this nature is also protected by the law but I could be wrong.
Either way I can’t imagine that a company involved in criminal acts, fraud, and the improper use of personal information will get any sympathy from a judge/jury if they try to press a case against the person who reported said activity.
I’m not in a position to know for sure but I can’t imagine that an NDA can be used against someone to cover up criminal activity.
In addition it seems to be a standard practice in American law that if you know of a criminal act and don’t report it you are an accomplice to the crime.
Finally, I believe someone turning over evidence of this nature is also protected by the law but I could be wrong.
Either way I can’t imagine that a company involved in criminal acts, fraud, and the improper use of personal information will get any sympathy from a judge/jury if they try to press a case against the person who reported said activity.
I’m not the expert that you are looking for, but…
From what I understand, NDA’s are pretty hard to enforce in general, and I think a lawyer asked about trying to enforce an NDA ona whistleblower would probably say that the case is a non-starter. Between statutes designed to protect whistle-blowers, “unclean hands”, and against the public good defenses, I don’t think there is a way an NDA would succeed in preventing someone reporting criminality.
On the other hand, these defenses might not work if the activities being reported are not criminal. A tort action doesn’t have to involve a criminal act (there is nothing illegal, for instance, for McDonalds to hold their coffee at 190F, even if it will cause 3rd degree burns to unsuspecting klutzy customers). If the hypothetical tape recording shows management discussing that their system is ill-designed to prevent identity theft and fraud (because it’s databases are easily accessable), but they have no intention of fixing this known problem, that is probably not safe to reveal, as negligence like that is probably not illegal. If the tape recording shows management discussing what they purchased last night using their customer’s credit card data (i.e., fraud on the part of the management or company), then that is criminal, and would likely be safe to reveal.
But like I said, I’m not a lawyer or an expert.
My real advice is for your friend to bite the bullet, spend $100 or so to consult an attorney in zir jurisdiction, bringing a copy of the NDA and a summary of the evidence zie has, and ask. The attorney/client privilege will prevent breaking the NDA that way, and zie will get a legally sound (if not legally accurate) answer for zir.
I’m not the expert that you are looking for, but…
From what I understand, NDA’s are pretty hard to enforce in general, and I think a lawyer asked about trying to enforce an NDA ona whistleblower would probably say that the case is a non-starter. Between statutes designed to protect whistle-blowers, “unclean hands”, and against the public good defenses, I don’t think there is a way an NDA would succeed in preventing someone reporting criminality.
On the other hand, these defenses might not work if the activities being reported are not criminal. A tort action doesn’t have to involve a criminal act (there is nothing illegal, for instance, for McDonalds to hold their coffee at 190F, even if it will cause 3rd degree burns to unsuspecting klutzy customers). If the hypothetical tape recording shows management discussing that their system is ill-designed to prevent identity theft and fraud (because it’s databases are easily accessable), but they have no intention of fixing this known problem, that is probably not safe to reveal, as negligence like that is probably not illegal. If the tape recording shows management discussing what they purchased last night using their customer’s credit card data (i.e., fraud on the part of the management or company), then that is criminal, and would likely be safe to reveal.
But like I said, I’m not a lawyer or an expert.
My real advice is for your friend to bite the bullet, spend $100 or so to consult an attorney in zir jurisdiction, bringing a copy of the NDA and a summary of the evidence zie has, and ask. The attorney/client privilege will prevent breaking the NDA that way, and zie will get a legally sound (if not legally accurate) answer for zir.
Mostly what everyone else said WRT IANAL, complicity, “unclean hands”, etc. with the additional comment that most NDAs I’ve read or signed usually circumscribes very specific activities or information of the business relating to it’s actual operation and activities, marketing plans, things having to do with competitive advantage, trade secrets, etc. and not absolutely everything that goes on there day-to-day.
Mostly what everyone else said WRT IANAL, complicity, “unclean hands”, etc. with the additional comment that most NDAs I’ve read or signed usually circumscribes very specific activities or information of the business relating to it’s actual operation and activities, marketing plans, things having to do with competitive advantage, trade secrets, etc. and not absolutely everything that goes on there day-to-day.