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I still want to know how an NDA that says you can't talk to law enforcement is (a) allowed, and (b) enforceable. If I were an investigator and heard about that, I'd want to know exactly what the company needed to hide so badly that they had to add that clause in.
And I said this in another post, but if you are ever asked to sign an NDA that says you can't cooperate with law enforcement, hand in your resignation and seek legal counsel. They're not asking you to sign it to protect you. They're asking you to sign it so when shit hits the fan (and it WILL hit the fan), you'll be the lackey who's stuck falling on their sword unless you want to be subject to a penalty that far exceeds what you were offered when you signed the NDA in the first place.
If they're saying "Here's a shitload of money, don't talk to the cops.", there's a reason for that. And it's probably not going to end well for you.
i don't think this is even enforceable
an nda is enforced by the justice system it's not going to enforce it against itself
I think the NDA could restrict you from talking to law enforcement about what you had for breakfast and probably be enforceable but contracts can't be enforced if they'd require you to commit crimes or prevent you from reporting crimes.
The NDA was apparently against voluntarily cooperating with law enforcement. Essentially, it was agreeing to only cooperate to the extent required by law.
That's still bad, but wouldn't overtly compel someone to commit a crime. It's just heavily implying that crimes are being committed and could easily push someone to do something illegal simply to cover their own ass.
Sure, but all voluntary cooperation with law enforcement would still be allowed under that NDA. The NDA itself might be legal to ask someone to sign, but you can never restrict someone's right to report criminal activity (you're also never punished for choosing not to report criminal activity, but the right to report is inalienable).
Legal agreements frequently include unenforceable bullshit. For instance a contract may include a phrase like "Either party may consult a lawyer if they surrender 300$ to the other party" you can put that in a contract and someone might pay you 300$... but the ability to consult a lawyer is inalienable so you could also consult a lawyer and refuse to pay the 300$ and they'd have no recourse to force payment.
The TL;DR is that we let bad faith lawyers get away with writing extremely unfair contracts that pressure people to do something without actually having the backing of the law. If people challenge it they'll win - but we've gotten really lax and don't actually punish the contract authors so a lot of folks just write bullshit into contracts that'd never hold up in court in the hope that people just blindly obey it.
And the TL;DR TL;DR (yes, I do in fact have ADHD, how could you tell) is...
Always talk to a fucking lawyer.
It's not that simple. There are two main components to the legal system, civil and criminal. Civil is between two private parties (people, companies, and sometimes the government) for disputes with contracts and such. Criminal law is when the government brings changes against you for breaking the law.
Generally law enforcement ("the justice system") works on the criminal side of things. It doesn't really care about a contract between two people if something illegal is happening. Can you imagine the loopholes that could create in organized crime if you just had to write a contract and you couldn't use an otherwise willing accomplice as a witness?
This is why criminal conduct automatically voids NDAs. You can sign it all day long. If you get called as a witness in a criminal trial, they can't do shit about it.
What about before the trial, you know, like during the investigation that has to happen before a trial can be called?
Doesn't matter. Once the cops are talking to you about it the NDA is done.
Bingo, severability is the name of the game.
if it prohibits voluntary cooperation, probably ok. Involuntary cooperation (subpoena, etc) is compelled no matter what you signed - but I am not sure if an NDA prohibiting it is unlawful. (Though it’s definitely unenforceable)
Even voluntary cooperation being okay is pretty wild, conceptually. What possible purpose could that serve but covering up crimes?
Suppose you work for an email provider and you agree not to talk to law enforcement about your customers' data without a subpoena. Seems pretty legit to me.
Yknow, that's pretty reasonable. Thanks for a good example!
I imaging that this scenario would be regulated by data protection laws and contracts, not by NDAs.
If that communication was about a user talking at being at a cafe on a certain day and law enforcement knew that a murder went down at that cafe, then I think it's enforceable, probably. If you're reading your server logs and see (and believe genuine) an email arranging a murder then your employer couldn't restrict you from reporting it to law enforcement.
You can't be compelled to criminal activity by a contract and nor can you be prevented from reporting criminal activity by a contract. Trump could get everyone in Trump tower to sign whatever contract he wanted but if he sexually assaulted someone in the lobby he'd have no legal grounds to prevent someone from reporting it to the police.
Does that imply that the NDA would spell out what they weren't supposed to talk to the police about, like customer records or something like that?
A blanket ban on speaking with the police would be pretty broad and likely stifle reporting of illegal activities.
That's what I had in mind, yes. A blanket ban sounds super shady.
No NDA can protect illegal activities.
Think about it. the enforcement of an NDA is going to go through the courts. “So what was the NDA protecting?”
“Your honor we paid the witness to answer a certain way” is… not going to end well. For anyone involved.
The only exception I’m aware of- and it’s not really one I’m sure of- is if you take a settlement from cops as a result of police misconduct.
It is unlawful.
But also: fuck the police; don't talk to the police; lawyer up.