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?
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:
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.
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.
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:
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.
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.
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
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.
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.
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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