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A rash of questions was recently flagged because they were in violation of some "Non-Disclosure Agreement.".

Is it the job of Stack Exchange moderators to enforce these agreements, and delete these posts?

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Screw 'em (the people complaining about the violations, I mean). If people post content that is in violation of some agreement, it's a problem between the two parties that signed the agreement, not SO's. –  Pëkka Jun 9 '11 at 13:38
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@Won't: I have an NDA covering your post, please remove this post immediately. Trust me. I swear. –  user7116 Jun 9 '11 at 13:52
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It's worth noting that the Legal Agreement between StackExchange and its "Subscribers" specifically prohibits this content. (in the Subscriber Content section.) –  Robert Harvey Jun 9 '11 at 14:35
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@Robert: unless an answer leads with, "I signed the NDA and so legally I shouldn't tell you this..." I'm not sure how you can know with any confidence that the author is violating anything. –  Shog9 Jun 9 '11 at 14:41
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I certainly don't feel any responsibility for policing the site for these kinds of questions. But I have no qualms about closing them, either. –  Robert Harvey Jun 9 '11 at 14:50
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@Robert: I'm saying, anyone can say "this question violates x NDA". Anyone. For any reason. Even if you're familiar with the specific NDA and technology involved, how likely is it that you can prove it? If someone wants to argue that a question should be closed simply because it can't be answered ("What features will C# 10 ship with?") that's a reasonable argument, but if a question is asked and answered, it's... kinda on the heads of whoever asks/answered to comply with the ToS. –  Shog9 Jun 9 '11 at 15:00
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@Shog9: Like everything else WRT moderation, it's a judgement call. In my judgement, leaving these questions on the site is a bigger problem; it implies tacit approval. The SE Terms already say these questions are not welcome here, so frankly I don't see what all of the fuss is about. –  Robert Harvey Jun 9 '11 at 15:13
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@Robert: of course it's a judgement call. And if SE needs to enforce a specific NDA to avoid getting into hot water over it, you'll be asked to respond. But as a general rule, you're simply not qualified to make a call without proof: after all, Joe Random User can flag this post as violating some mythical SE NDA and get it deleted if moderators were expected to respond to such things. Trade secrets are a matter for the courts, and the ToS also has an indemnity clause, for what that's worth –  Shog9 Jun 9 '11 at 15:15
    
@Shog9: OK, well some official guidance could be useful here. In the absence of that, the only thing I have to go by is the Legal Agreement. Since none of us are lawyers, the rest of this seems speculative to me. –  Robert Harvey Jun 9 '11 at 15:30
    
@Shog9: Official guidance that can be placed in the list of questions tagged faq would be nice. –  Won't Jun 9 '11 at 15:33
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@Robert: which is exactly my point - the flag is asking you to make a decision you're simply not qualified to make, so mark it as invalid and move on. If this becomes a legal issue, you'll hear about it; otherwise, let the community close and/or answer questions as it sees fit. From what I'm seeing regarding your IOS-5 example, the currently-closed questions tend to have other problems - poorly-asked, off-topic, etc. - so the NDA talk is beside the point. @Won't: so tag it... –  Shog9 Jun 9 '11 at 15:45

7 Answers 7

up vote 129 down vote accepted

No, for several reasons. First, Stack Exchange, Inc (hereafter SEI), is not party to such agreements. Second, making any effort to enforce third party agreements may put SEI in a position of being liable for NDA violations it misses. Third, there is no way to determine what is infringing and what is not.

SEI is not party to these agreements

The NDA a developer signs with a company is between the individual and that company. SEI is not part or party to that contract. If the developer violates the contract by posting on SEI's network, they have broken their NDA, however SEI has not broken any contract.

SEI does have a agreement with their users, which states, in part:

Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party, (b) reveals any trade secret, unless Subscriber owns the trade secret or has the owner’s permission to post it, (c) infringes any intellectual property right of another or the privacy or publicity rights of another, (d) ... violates any law or right of any third party, ...

If a user posts confidential information to an SEI network site, the user has violated both the NDA they have with the other party, and the agreement they have with SEI. However, this clause is meant to protect SEI, it doesn't require SEI to act on user infractions. It merely gives them a tool to use in case such an infraction threatens SEI.

No user can sign an NDA on SEI's part, and therefore SEI is not required to act when a user breaks a contract with a third party to which SEI has no part.

Attempts to enforce third party contracts may be unwise

YouTube used to be able to hide behind the "common carrier" defense that could be used to place all copyright and IP liability on the user that posts infringing material. In other words, as long as they acted when notified of infringement, they were protected from being sued directly for damages even though one could make the argument that they made money due to the infringement.

Due to a series of decisions regarding how they wanted to monetize the content, and the agreements they were attempting to enter into with content owners, they eventually started proactively taking down material they felt might infringe on copyright.

It was actually not a good move, although they probably felt it was inevitable if they wanted to continue to profit from it.

They then started being sued with the argument that since they were now policing the material that was posted, they were no longer covered under the common carrier defense, and must accept liability for the material they were providing to others.

In other words, once SEI starts policing the material posted for ANY IP violation, SEI potentially becomes liable for ALL IP violation. Right now SEI can use the defense that their agreement with the users disallows such posting, they quickly respond to takedown notices, and since they are not party to these agreements, then that is all they are required to do.

Unless the moderators are confident that they will be able to enforce all third party NDA agreements, even those they are unaware of, then they shouldn't be in the business of attempting to enforce any of them.

There is no way to determine what is infringing

Unless you are part of the NDA, you cannot possibly know what is covered by it. Further, you can't simply assume that there are only a few NDAs worth protecting. If you start protecting Apple's interests, you're not only going to have to protect Microsoft and Google, but also my clients - both large and small - who have had me sign NDAs to prevent me from spreading their trade secrets.

Even those moderators who may believe they have a good grasp of what the WWDC 2011 NDA agreement is are wrong - some users may not even be under that agreement, may have received information from others not under that agreement, or may have picked apart the public libraries and binaries to obtain their information.

Just because something is a trade secret does not mean that it's illegal to post - as long as the user obtained it legally, they are allowed to post it. At that point, if someone deletes it, it becomes very much like censorship. Suddenly that user must somehow prove to SEI that they are allowed to post it - it becomes a guilty until proven innocent problem.

Conclusion

There are many other reasons why Stack Exchange, Inc should NOT pursue the enforcement of third-party agreements, this is just barely skimming the surface.

If the moderators take action on their own to suppress posts they feel infringe such agreements, they put Stack Exchange, Inc in a very difficult legal position. By default they should NOT be closing or deleting such posts, until Stack Exchange, Inc directs them to do so, and if that's the case I'm quite certain they would receive such notice in no uncertain terms.

If a moderator has any question as to what they should do in these cases, the default answer is to let it alone.

Please be aware that I am not a lawyer, and this is not legal advice. I strongly suggest anyone who has concerns about this consult with a lawyer familiar with online IP infringement.

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I think that they shouldn't be obligated to devote their resources to policing other peoples content without pay. On other sites, this kind of moderation is a service that people pay for. –  千里ちゃん Jul 26 '11 at 13:23
    
What does SEI class as "takedown notices" and who from? –  markhunte Feb 14 at 23:35
    
In other words, once SEI starts policing the material posted for ANY IP violation, SEI potentially becomes liable for ALL IP violation. This is an extremely questionable statement - there is no real legal rationale for what is described as happening to YouTube, NDAs are very different from copyright infringements, and the term 'intellectual property' has no basis in law (but is a catchall for copyright, patents, registered trademarks, etc, all with completely different legal status). –  jwg Jun 27 at 10:09
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@jwg For those in a similar situation, I advise consulting with a lawyer. My comments are not to be construed as legal advice, each individual situation may be different, and I'm quite sure that stack exchange has it's own lawyer(s) who will determine the best course of action for that company. Note deliberate use of "may" and "potentially" scattered throughout that section. This is merely an opinion, one of several possible rationale for not policing NDAs on the network. Perhaps eventually they will comment or answer this question themselves or other answers will be up voted as more relevant. –  Adam Davis Jun 27 at 14:19

The moderators didn't sign those NDAs, they have no obligation to enforce them. And the mods have no way of verifying the legitimacy of the claim. I don't think they should delete content on that basis.

The company should make its case to the SE team and the SE team can then decide on a case-by-case basis.

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That is my initial instinct. But what happens when Apple sees a bunch of people asking iHerpetyDerp version i5.4.Pod questions? Seems like a pain in the ass for Jeff etal to have to comb through questions, evaluate claims made by iJobs. Is that a valid solution? –  Won't Jun 9 '11 at 13:28
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IANAL, but I think Jeff could just ignore them, SE has no legal obligation. Any action of SE would just being nice. There might be situations in which deleting the content just would be the right thing. In most cases I see no reason to enforce the NDA here. –  Mad Scientist Jun 9 '11 at 13:49
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@Won If Stack Exchange makes any effort to take down such posts, they may actually make themselves more liable for legal action. Their best course of action is to let the users accept liability for their own posts, and not try to filter them in any way. –  Adam Davis Jun 9 '11 at 13:53
    
@Adam: Where does the liability lie if someone edits a post to add or remove NDA information? What if you do the edit before you find out it was NDA? Are we setting ourselves up for legal action by editing a post, even if we're ignorant of the NDA that the OP or some other editor violated? –  Jeff Yates Jun 9 '11 at 15:06
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@Jeff If you do not have a contract with Apple, then Apple cannot easily do anything to you. If you have a contract with Apple, then that contract may have some requirements you must fulfill when you find infringing information online. It depends on the contract you signed. But if you didn't sign a contract, and you edit a post to add or remove any information, NDA or not, you aren't liable for fulfilling a contract you didn't sign. Since Stack Exchange, Inc did not sign a contract, they are not liable for fulfilling one. –  Adam Davis Jun 9 '11 at 15:47
    
@AdamDavis From what I have read here that is true unless it can be seen as such a common practice as to be seen as policing.? –  markhunte Feb 14 at 23:38

I don't enforce them. The only agreement I signed was with Stack Exchange, and I don't feel bound to enforce agreements signed by two separate parties.

The only real gray area that I see in these recent flagged posts is that a lot of the content they discuss is subject to change very soon. As I understand it, that's the reason for the NDA to begin with. I do think it's better to ask questions about APIs that are in flux on the official vendor site, but I don't think it's a moderation issue. If an answer ends up being wrong because an API changes, we can deal with it with editing and downvotes.

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This is my own personal opinion. If the SE Community Coordinators or owners want to establish an official policy, naturally I'll follow it. (Edit: That seems unlikely, in light of Shog9's answer.) –  Bill the Lizard Jun 9 '11 at 13:36

Is it the job of StackOverflow moderators to enforce these agreements and delete these posts?

No, it isn't:

But as a general rule, Stack Overflow exists to spread knowledge, not to give smug people the chance to play petty censorship games. The value of the diffusion of knowledge by far outweighs any interest this community might have in enforcing someone else's arbitrary rules, and we cannot possibly claim to have enough information, or the moral authority, to make decisions over whether or not a given individual has the right to even learn about how proxies work, or how to work around them.

If a post blatantly violates The Stack Exchange Terms of Service, remove it. But some random person asserting that a question violates or merely might result in a violation of some legal agreement between two third parties... You're probably not qualified to make that call, and expecting you to do anything about it makes you the personal army of anyone with an axe to grind - that's not what you signed up for.

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There's the saying, "those who know don't tell and those who tell don't know."

The experts and professionals using software or technology under obvious NDA* are also the people most likely not to break the NDA for fear of losing their license to develop for the platform. The people answering and asking questions about NDA-restricted technology are almost certainly people who don't have skin in the game: they're either not concerned with or unaware of the ramifications.

So while yes, moderators technically shouldn't be enforcing contracts to which they aren't a party, there's a real value to banning/closing/whatever questions talking about NDA-stuff: the people who are most likely to vet and answer questions correctly are the people most likely to steer clear of them. So you have a bunch of questions that likely don't have any experts participating in them, and it starts to remind me of the problem with Artificial Intelligence.

This is all in addition to the fact that, like Bill the Lizard mentioned, the general reason it's under NDA is to mitigate this exact problem: the proliferation of misinformation and rapidly out-of-date information. But I dare say it makes the internet worse, not better: it's a nice concept to say the information can always be updated, but again, you have a bunch of information out there created by people not in the know and not being vetted by the people who are. Yes, they can be updated when the NDA is lifted, but did we really make the internet a better place in the meantime?

In summary: no moderators shouldn't close merely because it's a question covering something under an NDA, but it's a pretty good signal the question is not a very good one, at least for now.

*Obvious in the sense that reasonable person with any tangential knowledge would know it's under NDA. e.g. iOS 5

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We can probably say that a question that covers an incomplete/volatile topic should be closed - the NDA is a clue to this but is not by itself a good enough reason for closing the post. –  Greg Sansom Jun 9 '11 at 14:20
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@Greg Yes, that's a far more succinct way to describe what I was getting at. :-P –  user149432 Jun 9 '11 at 14:27
    
To sum up, are you saying "such content is usually a candidate for Too localized, anyway"? –  Piskvor Jun 9 '11 at 16:53
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It's not necessarily obvious that the knowledge is under NDA. If Joe is an iPhone 5 beta tester under NDA, and Bob borrows the device, then Bob may report on his observations. Bob would be behaving perfectly legally unless he'd signed an NDA himself. Joe may be at fault for having let Bob borrow the device, but that's between Joe, Apple and the law, it doesn't involve Bob or his readers. If Bob had stolen the device, the legal situation would be different (the information would be tainted); but it's not SE's job to figure that out. –  Gilles Jun 11 '11 at 12:35

Moderators aren't the legal entities involved (well, typically). Plus since not all of us live in the same country, we may or may not be subject to the same or even similar legal requirements. And I don't know about most SO users, but I certainly don't have time or inclination to become a lawyer.

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I'd also like to call several points to mind as reasons why a site might choose to have its moderator team (both elected moderator and users with sufficient reputation to access the tools) establish a policy to not encourage NDA and beta software questions on the network:

  • Beta software by definition neither complete nor presumed functional - features can still be incomplete (but should at least be defined and documented), are actually known to be broken, and subject to rapid change on a daily or weekly basis.
  • Hosting questions that are clearly covered under NDA lends the appearance that anyone who is speaking authoritatively in the conversation is (or could be) breaking their NDA.

I agree that no one should feel they need to police someone else's agreements, but Stack Exchange also has a goal to get expert opinions and statement of fact as opposed to uninformed speculation of something in flux.

The problem with NDA+Beta software I've seen in particular is that Questions and Answers about this subset of software generally doesn't withstand the test of time and verifiability. Documenting something that is broken for a week isn't a good use of a worldwide forum, and no one can know what things today will be fixed tomorrow. If a broad class of questions fall under an umbrella answer of "This is something you need to work out with the vendor" or " Let's re-open this once we can talk about it openly." having clearer guidelines can help focus askers to consider what answer their question might reasonably receive.

At best, many answers will just parrot the marketing material that usually comes with software that is Beta/NDA/promised. Restricting questions to be on-topic to software and API that have actually shipped has intrinsic value to the site outside whatever agreements (NDA) were made when that software was "released" by a vendor to a subset of people rather than to the public at large.

In summary, moderators (both elected and those with reputation from votes) should enforce a policy of promoting questions that have a chance to get an excellent answer as opposed to enforcing an NDA. The presence of an NDA covering the subject of any question is one strong indication that we're not at a time to get good answers even when the OP is asking a quality question in the correct place.

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I disagree with your first bullet point. I think beta software is a perfectly legitimate subject for a question. A problem that someone has with beta software is still a problem that others might have. Yes, it could be fixed in the next version, making the question obsolete, but we can handle that then. It's also possible that the problem may persist, and/or that the beta version is still used by some people, for whatever reason, after full release. Beta status should not, in itself, disqualify a question. –  Josh Caswell Jun 16 '13 at 18:26
    
I do, however, agree with the rest of your reasoning: the other circumstances make high-quality answers unlikely, and these questions unfortunately need to be watched fairly closely. –  Josh Caswell Jun 16 '13 at 18:28
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The beta thing can and has been a problem (in the case of very short-lived / iterative betas, where behavior changes by the week or even by the day). It's a valid concern, but evaluating a specific question about a specific product requires a bit more thought than just "does the name contain the word 'beta'" - after all, there are products that've been in beta for months or even years... Your NDA concern is better handled by a prohibition on speculative questions where the asker cannot verify the validity of answers posted (by using the software being discussed). –  Shog9 Jun 16 '13 at 20:32
    
@Shog9 You're right - beta itself isn't necessarily a problem so I've clarified NDA+beta is worth consideration when they are two common items in a question being asked. –  bmike Jun 16 '13 at 20:39

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