In Silicon Valley, strict secrecy provisions in nondisclosure agreements prevent workers from discussing all sorts of things about their jobs. Insider collected dozens of these NDAs as part of a sweeping look at how money and power enforce silence in the tech industry.
NDAs are widely-used by tech companies in employment agreements reached when an employee starts a job and in separation agreements when they leave. Because these agreements are shrouded in secrecy, there is little public understanding of how different companies’ confidentiality contracts compare, and the extent to which some companies may seek to impose overly broad restrictions on their employees.
Here are some of the key sections of the NDAs we reviewed:
“Recipient agrees to protect Apple’s Confidential Information using at least the same degree of care that it uses to protect its own confidential and proprietary information of similar importance, but no less than a reasonable degree of care. Recipient agrees to use Apple’s Confidential Information for the sole purpose of conducting discussions with Apple related to Apple projects. Recipient will not disclose, publish, or disseminate Confidential Information to anyone. Recipient will be responsible for any violation of the terms of this Agreement. Recipient agrees not to use Confidential Information for any other purpose or for its own or any third party’s benefit without the prior written consent of an authorized representative of Apple in each instance. Recipient may disclose Confidential Information to the extent required by law, provided Recipient make reasonable efforts to give Apple notice of such requirement prior to any such disclosure and take reasonable steps to obtain protective treatment of the Confidential Information. …. Recipient hereby acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Apple that may be difficult to ascertain. Accordingly, Recipient agrees that Apple will have the right to seek and obtain immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have.”
How Apple defines “confidential information”:
DEFINITION OF CONFIDENTIAL INFORMATION. Recipient agrees that information disclosed by Apple to Recipient regarding Apple projects, personnel, and related matters, including but not limited to information learned by Recipient from Apple employees, agents, or through the inspection of Apple’s property, that relates to Apple’s current or future products, designs, specifications, prototypes, business plans, business opportunities, finances, research, development, know-how, personnel, or third-party confidential information disclosed to Recipient by Apple, the terms and conditions of this Agreement, and the existence of the discussions between Recipient and Apple will be considered and referred to collectively in this Agreement as “Confidential Information.” Confidential Information, however, does not include information that: (a) is now or subsequently becomes generally available to the public through no fault or breach on the part of Recipient; (b) Recipient can demonstrate to have had rightfully in its possession prior to disclosure to Recipient by Apple; (c) is independently developed by Recipient without the use of any Confidential Information; or (d) Recipient rightfully obtains from a third party who has the right to transfer or disclose it to Recipient without limitation. Notwithstanding the foregoing exclusions, in no event will Recipient disclose any information regarding Recipient’s participation in discussions with Apple without Apple’s prior written approval.
“Nonuse and Nondisclosure. During and after my Google employment, I will hold all Google Confidential Information in strict confidence and trust. I will take all reasonable precautions to prevent any unauthorized use of disclosure of Google Confidential Information, and I will not (i) use Google Confidential Information or Google Property (as defined below) for any purpose other than for the benefit of Google in the scope of my employment, or (ii) disclose Google Confidential Information to any third party without the prior written authorization of Google. I agre that all Google Confidential Information that I use or generate in connection with my employment belongs to Google (or third parties identified by Google). I understand that my violation of this Section 2 may lead to disciplinary action, up to and including termination and/or legal action. … Notwithstanding my confidentiality obligations, I am permitted to disclose Google Confidential Information that is required to be disclosed by me pursuant to judicial order or other legal mandate, provided that I have given Google prompt notice of the disclosure requirement and that I fully cooperate with any efforts by Google to obtain and comply with any protective order imposed on such disclosure. Additionally, I understand that nothing in this Agreement limits any right I may have to discuss terms, wages, and working conditions of employment, as protected by applicable law.”
How Google defines “confidential information”:
“Google Confidential Information means any information in any form that relates to Google’s business (or the business of Alphabet Inc. or its subsidiaries other than Google (together, “Alphabet”)) and is (i) a trade secret; (ii) proprietary information that does not legally constitute a “trade secret,” but is made Google’s property or Alphabet’s property, by contract in the form of this Agreement; or (iii) information that is otherwise legally protectable. Examples include, but are not limited to, Google’s or Alphabet’s non-public information that relates to its actual or anticipated business, products or services, research, development, technical data, customers, customer lists, markets, software, hardware, finances, Inventions (as defined below), and user data (i.e., any information directly or indirectly collected by Google or Alphabet from users of its services). The foregoing are only examples of Google Confidential Information. If I am uncertain as to whether any particular information or materials constitute Google Confidential Information, I shall seek written clarification from Google LLC’s legal department.”
Confidential Information. (a) Company Information. Subject to Section 4(d) below, I agree at all times during the term of my Relationship with the Company and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the Company solely to the extent necessary to perform my obligations to the Company under the Relationship, or to disclose to any person, firm, corporation or other entity any Confidential Information that I create, receive or otherwise learn about in the course of the Relationship. Subject to Section 4(d) below, the only exceptions to this prohibition are that I may use and disclose Confidential Information (1) for the sole benefit of the Company and only to the extent absolutely necessary for me to provide services to the Company under and during the Relationship; or (2) only to the extent I have received express written pre-authorization from the Company via an agreement to permit a specific disclosure/use signed by a member of the Facebook Board of Directors or by a Senior Corporate Officer of the Company. I further agree that I shall not remove any Confidential Information from Company premises, nor shall I make copies, excerpts or summaries of Confidential Information except as necessary to perform services under the Relationship. This does not apply, however, to copies that I have provided to any Regulator or any other regulatory or enforcement authority, as described in Section 4(d) below. I also agree that during and after the Relationship, I shall take all reasonable and necessary precautions to avoid inadvertent disclosure and use of Confidential Information not otherwise permitted by this Agreement.
How Facebook defines “confidential information”:
I understand that “Confidential Information” means any Company proprietary information, technical data, trade secrets or know how, including, but not limited to, research, product plans, products, services, suppliers, employees, customer lists and customers (including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the Relationship), prices and costs, markets, software, developments, inventions, laboratory notebooks, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, licenses, non-public information relating to the Company’s financial position or budgets disclosed to me by the Company either directly or indirectly in writing, orally or by drawings or observation of parts or equipment or created by me during the period of the Relationship whether or not during working hours and including Inventions (as defined below). I understand that Confidential Information includes, but is not limited to, information described above in this Paragraph pertaining to any aspect of the Company’s business, which is either information not known by actual or potential competitors of the Company or other third parties not under confidentiality obligations to the Company, or is otherwise proprietary information of the Company or its customers or suppliers whether of a technical nature or otherwise. I further understand that Confidential Information does not include any of the foregoing items which has become publicly and widely known and which has been made generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the item or items involved.”
“Nondisparagement . You agree not to disparage the Company, and the Company’s officers, directors, employees, investors and agents, in any manner likely to be harmful to them or their business, business reputation or personal reputation; provided that you may respond accurately and fully to any question, inquiry or request for information when required by legal process or in the course of a government investigation. With the exception of responding to governmental investigations or requests for information required by legal process, you agree that you must seek the Company’s prior written consent before initiating or engaging in any other communications (verbal or written) concerning the Company with any third parties, including but not limited to members of the press, whether for attribution, on background, or on the condition of anonymity, or with any current or former Company employees, consultants, analysts, investors, vendors, tenants, business partners or service providers; provided, however, that if any such individuals or entities initiate communication with you concerning the Company and/or your separation from the Company, you agree to respond by stating the following: “It would not be appropriate for me to comment on my work at TaskRabbit.” Notwithstanding the foregoing, you may truthfully disclose on a resume, in a LinkedIn profile or similar professional profile, or during a job interview the job title you held with the Company, the general duties you performed while employed by the Company, and the dates of your employment with the Company, so long as your disclosure honors all the confidentiality obligations set forth in this Agreement and the Non-Disclosure Agreement and the nondisparagement obligation set forth in this Section of the Agreement. Company agrees that should it be contacted by any third party regarding a reference for you, it will provide a neutral reference consisting of confirmation of employment and dates of employment. Company agrees to further inform any such third party that this neutral reference is being provided pursuant to the Company’s policy.”
Employers aren’t the only ones using NDAs. Hackbright, a coding academy, makes its students sign a confidentiality agreement:
“Confidentiality. The Parties agree that they will not disclose the Agreement, its terms and conditions, and related negotiations among the Parties to any other person, except (i) to persons for whom such information is necessary to effectuate the provisions of the Agreement (and who shall be advised of its confidentiality and be requested to agree to this provision); (ii) to those employees and outside professional advisors (e.g., accountants, lawyers, tax advisors) who need to be aware of the Agreement or its terms in the ordinary course of business to perform their duties and to properly advise the respective Party; (iii) to the extent a Party makes such disclosure to comply with applicable securities laws, rules or regulations or stock exchange practice requirements or for purposes of financial reporting, the preparation of financial records (e.g., tax returns, financial statements, etc.) or review in the ordinary course of business by lending institutions; (iv) to the extent such disclosure is required for enforcement of the Agreement; (v) to parents, subsidiaries, or affiliates of a Party; or (vi) as otherwise required by federal or state law, including for example compliance with legally authorized discovery procedures or the notice requirements of the securities laws; provided, however, that if any Party, or its counsel, receives a subpoena or discovery request seeking information regarding the subject matter of this Agreement, that Party and its counsel shall as soon as possible by electronic mail (email) or overnight delivery notify counsel for the other Party (as identified in the signature block below) of such receipt.”
But NDAs are everywhere
In addition to reviewing NDAs shared anonymously by tech workers, we also reached out to tech companies directly.
Insider requested boilerplate language from 50 of the largest companies in the industry. We requested copies of nondisclosure and non disparagement clauses from 25 of the largest publicly-traded tech firms and 25 of the largest privately held firms.
We gave each company multiple opportunities to respond and to provide comment. Of the 50 companies surveyed, only five answered questions for this story, with the rest either not responding or declining to comment or otherwise participate.
For those companies that declined to share language, Insider also asked: why the company was declining to disclose the language it uses to craft nondisclosure and non disparagement agreements, whether the company had ever hired an employee who declined to agree to such provisions, and whether the company had ever pursued legal action against a former employee over an alleged breach of their nondisclosure or non disparagement agreement.
Read each company’s response below:
If you’d like share your story as part of Insider’s ongoing coverage of NDAs, reach out directly to reporter Matt Drange by email — email@example.com — encrypted text via Signal, WhatsApp or Telegram: +1(626) 233-1063, or snail mail Attn: Matt Drange, Business Insider, 535 Mission Street, 14th Floor. San Francisco, CA 94105.