The Creepy Spy Clause in Translation NDAs

spy

It seems the translation giants are at it again, exercising increasing power over the little guy while trying to conceal their abuse of contractual asymmetry behind the reservation of a “right”. The angle this time? “Reserving the right to scan your computer and carry on onsite checks of translators.” So official, yet so problematic.

Now, before I pour out my analysis, allow me to make a pertinent digression: As a very bright young lawyer/interpreter pointed out in the forum that inspired this post, I’m a lawyer and law professor in a country under the civil law tradition; therefore, my view may be biased by my own system and not everything I’m about to write in this post applies to all countries. However, as I replied to said bright young colleague, there are general principles of law recognized by most countries and that is what I will focus on here. So unless you are in the most backwards legal system on Earth, the following is likely to apply to your jurisdiction as well.

YOU CAN’T RESERVE RIGHTS YOU DON’T HAVE OVER OTHER PEOPLE’S PROPERTY

Your property is yours and you can waive rights over your property. For example, if you are a homeowner and you rent out or lease your home to someone, you waive certain rights to your tenant or lessee. However, nobody would have a right to enter your home and exercise property rights without your permission simply because you put a FOR RENT sign on your front lawn. Similarly, nobody can take control of your property (including your computer) simply because you are providing a service to them. Of course, property can be seized or confiscated by the government (including the judiciary) in some cases and countries, but that kind of control over your property is different and cannot be exercised by private persons without government authorization in most advanced legal systems.

Companies drafting clauses like the one in question are not technically “reserving a right” because they don’t have said right to begin with. What they are doing is asking you to waive some of your rights to them. The decision is yours. It should not be forced upon you as if you had no choice, as if the company had a right to such action, or as if this was a widespread practice in translation. Although onsite and computer checks are a widespread practice in other fields, translation is not one of them; and the reason for that has a lot to do with how the nature of our work differs from that of “vendors” or “contractors” in other areas. But that is a whole other story. Of course, there can be exceptions to all this, but I’m referring to the specific case of a freelance translator working from home/office for a big LSP that may even be located in a different country.

TRANSLATORS HAVE A RIGHT TO PRIVACY AND CONFIDENTIALITY

What’s the difference between privacy and confidentiality? Privacy is all about you and confidentiality is all about others.

You might have “things and stuff” on your computer you don’t want anyone to see: family photos and embarrassing videos of your failed attempts at volleyball when you accidentally broke your neighbor’s window (true story). Whatever it is, it’s PRIVATE. The right to privacy is a human right (and an individual element found in many Constitutions and legal systems) by which neither governments nor private individuals can poke their noses in your business -that includes the “things and stuff” on your computer. It is found, among other places, under Article 12 of the Universal Declaration of Human Rights: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

If you’re in the UK, I believe you can’t take privacy suits to court, but you can still protect your privacy under different torts and are protected by the ICO and the Data Protection Act of 1998; Freedom of Information Act of 2000; Privacy and Electronic Communications Regulations of 2003, among others. You should ask a local lawyer about this, though. If you’re in the US, I’m sorry to tell you The Man does not care much about your right to privacy when the government is the one doing the spying, but there are many precedents where individuals have been granted protection from private parties or corporations. Meanwhile, if you’re in Latin America, you’re likely to have strong constitutional protection of your privacy, especially if you’re in a country with a “constitutional bloc.” Wherever you are, chances are you have some form of protection and your local lawyers can advise you on your options.

Confidentiality, on the other hand, is construed in many (though not all) countries as limiting or restricting access to information you may hold that can affect others. In other words, while privacy is all about you, confidentially is all about other people, including your clients. And if the client proposing the creepy spy clause (Client B) is not your sole client and/or you have sensitive information on, about or belonging to other clients (Client A), you may be breaching Client A’s confidentiality by agreeing to Client B’s clause. So be careful and watch what you sign!

YOU CAN’T JUST PUT ANYTHING YOU WANT IN A CONTRACT

While contractual freedom is a general principle of law, it does not mean that you can put anything you want in a contract and then expect to enforce it. If I entered into a contract with a hit man to kill my noisy neighbor in exchange for $8 thousand and paid $4 thousand upfront, agreeing to pay the remaining $4 thousand when my neighbor’s dead, and then the hit man failed to kill my neighbor and return my deposit, there is no way on Earth I would be able to enforce that contract. Why? Because killing people is illegal. So I can draft the most nit-picky contract in the world, I’d still lose in court (and probably end up in jail for conspiracy to murder). See where I’m going with this? If the object of a clause violates the law, it is unenforceable. In some jurisdictions it will invalidate the entire agreement, in others just the clause, but the point is that if it is unlawful, courts won’t enforce it.

How do you know if the clause is unlawful in the jurisdiction in question? The easy way is to ask a lawyer or resort to a protection agency, such as the UK’s ICO or similar bodies. But if you’re lawyer-averse, then look under privacy, confidentiality, competition, real property or intellectual property laws in your country. Chances are you’ll find more than one argument to challenge such clauses in several of these laws (I can think of at least three in different laws in my country).

DOES THIS MEAN NDAs CAN’T INCLUDE CONFIDENTIALITY PROTECTION CLAUSES?

No, that’s not what this means at all. What this means is simply that there are more efficient and lawful ways of going about it. Why someone would chose the “creepy approach” to ensuring confidentiality is beyond me. But as translators, we don’t have to agree to these clauses –unless we’re hopelessly desperate to work for such companies, in which case we’re better off marketing ourselves more efficiently and trying to land better and not-so-creepy clients.

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18 thoughts on “The Creepy Spy Clause in Translation NDAs

  1. “Why someone would chose the “creepy approach” to ensuring confidentiality is beyond me.”

    Such a clause would be very useful to a translation agency for a number of purpose. If a translation agency could spy on its translators, it would have an almost absolute control over them, because it could then for example blackmail them if it found blackmail-able content on the hard disk. It could also find out who the translators work for, how much other agencies or other customers are paying the translators, which other agencies are working on which projects (very useful for client poaching), etc.

    Common sense says that this is the real purpose of the spy clauses, the need to “verify proper installation of security software settings” is a transparent, laughable pretext.

    Liked by 2 people

  2. Whatever happened to the days when agencies realized that they purchase a product that they cannot produce on their own, and re-sell it? You don’t tell Whirlpool how to do business, you just put your milk inside the refrigerator you buy from them. Or sell it in a garage sale. Or do whatever you want with it. But you can’t dictate the business practices of the company that sells it to you.

    Liked by 1 person

  3. Very plausible Steve – and tot that it changes anything – but another plausible explanation is that the agency (or some agency up the food chain) had signed a government/defense/whatever contract with such a clause and now simply trying to impose it on their contractors down the food chain to cover their behinds.

    I have a sneaking suspicion that if those granting these contracts would have known how the translation business really works they would have understood how their contracts pretty much stop with the agency although the core service is done outside their premises and control, but the “LSPs” do a good job at pulling the wool over people’s eyes.

    Good, useful, and important post, Paula. Thank you.

    Liked by 2 people

  4. TranslationCraft says:

    I’m so glad to see you address the topic of this type of clause, since I’ve seen more and more translators bring it up in discussion forums and asking what to make of it.

    While I agree we must assert our privacy rights when asked to sign such garbage, agencies could care less about your privacy or mine; what they WILL listen to is your point that signing such a clause would violate our confidentiality agreements with all our other clients, since we do not have “dedicated” computers. Something like this might do the trick: “Just as I am willing to sign a confidentiality agreement with you, I have already signed confidentiality agreements with my other clients and am therefore legally bound not to give you access to my computer files.”

    Shai may be right that this is, in essence, a trickle-down clause from a government agency as the end client. If the government is the one overriding privacy rights and claims it needs this clause for so-called “national security reasons,” what’s the best way for a translator to counter that argument?

    Liked by 2 people

  5. Dennis Brown says:

    Of course it may simply be that (some) lawyers see their job as drawing up a contract that totally favours their client, and to hell with the other party. After all there are equally hideous clauses in all sorts of contracts, hire purchase and lease agreements for example. If it’s a corporate being asked to sign such an agreement they’ll get their lawyers to look at it and there’ll be agonizingly drawn out to-ing and fro-ing to finally get to an agreement that is fair to both parties. The consumer and small businesses can’t or won’t waste money on that of course.

    I like the suggestion from TranslationCraft. Could you add “Besides my/our lawyers have said that clause may well actually be illegal, in which case the whole agreement could be null and void anyway”, or similar?

    I suspect though that PMs in a big agency probably couldn’t do much about it anyway, even if they wanted to. After all, how could a lowly PM question something from their Legal Department or the company’s lawyers?

    One option is just to delete clauses you don’t like, hand write and initial minor amends you want, then sign the agreement and send it back. Sometimes just having a signed agreement might be enough to tick a box and let the PM assign the job. You never know. Of course it means being an amateur lawyer, and having to waste time on it.

    Isn’t this something ATA and other translator associations, and even FIT, should get involved with? If any of them had something on their website, a translator saying that they can’t sign the contract because it doesn’t conform to accepted guidelines and linking to that page might have a better chance of getting somewhere.

    Liked by 2 people

    • Very good point, Dennis. Your suggestion (deleting and amending) could work in some countries, but not all. For example, there was a very famous case a few years ago in a Nordic country (I believe it was Denmark) where a little guy beat a big international bank with your strategy. The same strategy would not fly in the US, because the US has a long history of imposing contracts of adhesion as they are, even in cases where they were clearly unfair and abusive. In Argentina, you could sign it and if push comes to shove probably have the clause annulled by a court on the count of its abusiveness. It’s hard to tell what could work because it varies so much from one State to another. My strategy is always to try to negotiate and if the client is inflexible just get better clients.

      I definitely think organizations like ATA should address these issues. I know ATA’s literary division is working hard to provide a model agreement for literary translators and ATA has a model agreement for non-literary translation on its site. It’s a start, but there’s a lot more work that can (and should) be done! IAPTI also works hard to address these issues and I believe one of the presentations in Bordeaux this year will address translation contracts specifically.

      Liked by 1 person

  6. “what’s the best way for a translator to counter that argument?”

    If the government, and then a translation agency, tells you that you must kill your grandmother and her dog because it is absolutely indispensable for reasons of national security or some such other nonsense, the best way to counter the argument is to tell them it is illegal and stop working for such a government or translation agency.

    It is relatively easy to refuse to obey an agency, more difficult when it comes to government.

    But illegal is illegal, and as Edward Snowden has demonstrated, once you expose rampant illegality, all of the king’s horses and all the king’s men cannot put Humpty together again because we do not live in a totalitarian state, at least not yet.

    Liked by 2 people

  7. Thank you everyone for your comments. They are very insightful and thought provoking! 🙂

    I think a clause of this sort is much less problematic coming from a government because in most advanced legal systems the government has the duty to protect your privacy and that extends to anyone affected by what they find in your computer. So imagine Client A is the government of Whereverville and Whereverville is a signatory of the International Covenant on Civil and Political Rights (or similar international treaty), Client B is a corporate client that entrusted you with confidential information. If Client A went into your computer and saw Client B’s info, Client A has a duty to keep that info private. Of course, this is simpler in countries with monist approaches to international law. In countries like the US with a dualist approach to international law you still have constitutional protections that impose a similar duty on the State. In addition, per the Vienna Convention, a State cannot invoke its municipal law as the reason for the non-fulfillment of international law. With that in mind, with some exceptions, I would sign a clause of this sort if it’s a government contract. Plus, a government might have very good reasons to want to inspect your equipment under national security or similar arguments.

    The problem, as pointed out above, is when it finds its way down into contracts among private parties. I don’t know if the reason for this is what Shai is describing, which is very plausible, or the equally plausible anticompetitive behavior that Steve described. But either way I think Catherine’s approach could work for opting out of such a clause, provided the LSP is willing to negotiate the terms of the NDA. Unfortunately, in most cases, these NDAs seem to be presented as contracts of adhesion (take or leave it) and that makes it very hard for freelancers to negotiate.

    As far as innferfishwife’s comment, from a legal point of view, equating translation to the sale of commodity goods is very problematic because translation is a professional service and there is a monumental difference between a commodity good and a service. But a lot of translators seem to be under the impression that we somehow sell a product, so I think this might just be the subject of my next post!

    Liked by 1 person

  8. Ward says:

    And this is one of the reasons many of us who worked with TBW for many years, at good and decent rates, have now told them to go take a hike !

    Like

    • The Big Word was paying decent rates? I never worked for them but from what I could have gathered online this is one of the worst, most evil translation sweatshops out there. I mean, they even had a fake Twitter account back in 2011 designed to mock them. They must have pissed somebody off pretty bad. My observation is that those creepy spy clauses are most likely to appear in NDAs of agencies that no professional translator should work with in the first place.
      If an agency presents you with something like this, trust me, you’ll be better off without that agency.

      Like

      • Ward says:

        You’re young Dmirty. Back in 2005-6, they were paying me US$0.10 per word. That was decent back then.

        Like

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