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>> law, technology, and the space between

All content by Kyle E. Mitchell, who is not your lawyer.

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December 11, 2019

The Doorway NDAlawyers earning their stereotypes

I broke a personal rule today. I “signed” a nondisclosure agreement at one of those front-desk check-in stations infecting San Francisco tech company offices like an iPad-poking pox.

At first, I refused. And the helpful front desk people—having never encountered such a creature—phoned it in and got permission to make a badge special. Gaining admission that way, I was soon fished back to tap through again by company counsel, leaving the defaults alone this time.

While reading the NDA, I discovered a typo, which I mentioned to my escort. I also noticed several legal deficiencies—in the host’s favor—which I did not. I left the “agree” option preselected, and pressed the print-my-badge button. The machine duly belched yet another ticket, identical to the one I was already wearing.

I signed the damn thing because behind the corporate gate sat three clients waiting for my legal advice. Free legal advice. The event hosted by the company was a legal aid clinic. I was one of the lawyers.

Time was short, and so are lawyers ready, willing, and able to give fairly specialized legal advice for nothing to hard-up clients in somebody else’s office a twenty minute walk from BART in the rain. If I didn’t make it in, I gathered those folks were heading right back out the door into the rain with nothing … except new obligations under the nondisclosure terms they signed at the door.

The lady whose job it was to drag me back offered a few notes of apologia. She mentioned that it’s a tech company thing. I mentioned I’d visited hundreds without signing. She mentioned that she once had to agree to the NDA for her four-year-old child. I neglected to mention what we both know, which is that four-year-olds, unlike licensed California attorneys, generally can’t be held to legal contracts. It’s ridiculous, and we both knew it.

I am not against nondisclosure agreements. I coordinate a project to standardize an international nondisclosure agreement form. But I have not and will not recommend or approve the use of doorway NDAs. Not for San Francisco startup clients. Not for any other kind.

The hubris, insensitivity, and legal magical thinking involved showcase the worst of American legal practice to everyone who comes through the door. As an informed producer and consumer of legal terms, the doorway NDA says “if this corporation were a person, its favorite author would be Kafka, and in a disturbingly literal way”. Even if the legal department trims its form down. Even if it tries to write a short, folksy one. All pretension to the romantic, Schumpterian startup ideal is dead on my arrival.

Nondisclosure agreements are not nondisclosure guarantees. If the only consistent means of securing precious intellectual property your organization practices is a form agreement on an iPad that checks “agree” by default, for terms you know almost nobody reads, then whatever trade secrets you aimed to defend are doomed. They may actually be more at risk than if you hadn’t.

By implicitly endorsing the magical power of the doorway NDA, legal invites defenses further in depth to slack, in reliance on the anointed talisman. The people who put sticky notes in the wrong places, or bellow too loud into speakerphones, don’t typically boast intimate legal knowledge of what NDAs can and cannot achieve in the field. They know that in the event of an issue, they will have legal to blame.

To the credit of my hosts specifically, they did actually practice more countermeasures. I required a legal escort, for example, to use the restroom. Which oddly enough fell both outside the Free Zone I could travel unescorted and on the route we took to get in from the entry. In other words, the range I could roam did not include the can or the way I got in. A river of security policy lava separated me both from life’s necessities and the State of California.

All that said, nondisclosure agreements do have signal value, in addition to legal value. Wherever presented, they say “Put on your grown-up pants. It’s serious business time.”

That is important, and not always obvious without the formality of something legal. But none of the words of that message are “welcome”, “nice to see you”, or “thank you for coming to us, instead of making us come to you”. Doorway NDAs unravel every thread of good hospitality.

There are several good reasons to keep a semi-open physical office, even a lavish one with room for visitors and events in the nation’s designated real estate bonkers market. You can develop community goodwill. You can offer neutral space to business counterparties. You can host exploratory meetings with outsiders. A doorway NDA undermines your considerable investment at every turn. At best, you can hope that visitors will simply overlook the imposition. You can fantasize that the memory and anxiety of agreeing to terms they did not expect and know they don’t fully understand will vaporize in their minds as soon as they tap the right button and get through.

Ubiquity, or perceived ubiquity, dulls down the obvious social gracelessness of doorway NDAs. If they’re everywhere, they’re unremarkable, bordering on unobjectionable. I imagine salespeople at integrated sign-in system vendors love to bring this up. Along with all the bad facts that linger like a dark cloud over the enforceability of terms we approve to upgrade our smartphones, website terms of service, and all the other adhesion contracts that have sprouted checkboxes in the last couple decades.

Everyone takes more of that kind of legally sanctioned abuse than they give, even executives at companies that rely on click-through terms. Nobody I know seems to think enforcing such agreements fair in any intuitive sense. But the legal system stands at apparent loss to distinguish contracts that people do not read and cannot understand from contracts they were made to say they read and knowingly agreed to. It is hard to claim a good and honest bargained-for exchange when one side literally cannot fathom its side of the deal without legal advice it doesn’t have and a magnifying glass that wasn’t provided.

The right path is actually pretty obvious. Throw your integrated sign-in system in the trash, or at least disable the NDA prompt. Admit that you’re taking names and contact info for record keeping, and mind the relevant privacy laws. Divide your office space past the airlock into open and closed domains. Keep outside people in the open zone, and inside stuff in the closed one.

If an outside person needs to breach the inside zone, NDA them. But don’t use an iPad. Nine tenths or more of the value in the NDA ritual comes of the seriousness, expectation, and change of context induced. You want to interrupt the social and intellectual stride that brought the other to your door. Print out a form in duplicate, sign in ink, give them a copy, and run yours through a scanner. Or Hell, use the camera on your phone if you want to feel modern. But do it out of sight. Gadgets aren’t serious.

Big, private law firms garner no acclaim for deep technical whiz-bang. But as far as I’ve seen, they all get this right, even while their clients get it wrong. Reception desk in sightline as you enter. First doors from there into conference rooms, consultation rooms, and meeting rooms. Double doors in the hallway separating welcome zone from staff and attorney offices, storage, lunch room, &c. No chickenshit iPad NDA at the door. Just real people—like the guys at the desk I met today—who can make folks welcome, watch them ‘til hosts arrive, or guide them where they need to be.

Law firms have more than trade secrets to worry about. Under confidentiality and privilege rules, nearly everything they get from clients gets the secret treatment. And they still don’t manage to harsh the welcome vibe. They know damn well the people they want to do business with next week will come through their doors as guests tomorrow. They know their investment in square footage for meeting rooms is money burned if nobody feels comfortable meeting them there.

Companies are sliding backwards on the basics. With heads in legal clouds, remote from predictable human consequences, and vendors all too eager to facilitate the trip, duds like the doorway NDA follow like bad ideas from too much money. Command can see the iPads at the door, see its concrete policy mandate effected. But they’re still anxious, still wonder if their advice ever really registers with the boots on the ground. If it’s taken as advice, rather than another obstacle to clear.

It isn’t. With the doorway NDA, ain’t hard to tell why.

I’m irked once, the first and last time I visit the office. The people who work there see and feel it every day.

Your thoughts and feedback are always welcome by e-mail.

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