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'NDAs': I Could Tell You, But I'd Have to Sue You

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By Rob Pegoraro
Friday, April 14, 2000; Page E01

A few weeks ago, Sony wanted to let me in on a secret or two. I like finding out secrets. It's part of why I do this job.

But before they'd bring some examples of their latest line of laptops to 1150 15th St. NW, the public-relations staff at the consumer-electronics giant wanted me to sign a piece of paper called a non-disclosure agreement. In this NDA, as it's called, I would promise to "embargo, safeguard and hold in confidence, and to neither directly nor indirectly publish, disclose or use by any means whatsoever" the news until Sony made the actual product announcement.

The difference between this and a verbal embargo or some other informal deal is that an NDA is a legally binding contract--I could be sued for breaking one. (I've yet to hear of this ever happening to a journalist, however.) And that in the technology business, a simple agreement will rarely suffice when you can make somebody sign an NDA instead--no matter how trivial the alleged news item is, or how many times it's already been reported on. In the past 2 1/2 years, I have been asked to sign NDAs for, among other things:

* Introductions to H-P's spring 1998 and summer 1999 lines of home computers.

* A meeting with the CEO of the Listen.com music Web site.

* A pre-launch briefing on Microsoft's now-defunct Sidewalk site.

* A demonstration of the winter 1998 version of the World Book Encyclopedia CD-ROM.

* A meeting to show off Rand McNally's 1999 editions of its mapping and trip-planning software.

* A demonstration of three photo printers Epson introduced this February.

* A look at Microsoft's upcoming Pocket PC platform, the company's latest attempt to compete with Palm Computing in the handheld-organizer market.

(It's things like this list that remind me that I don't exactly have Woodward or Bernstein's job.)

Since company policy prohibits me from signing NDAs at all, I've had to beg off these meetings, unless the company involved would agree to dispense with the agreement.

In Sony's instance, I told the spokeswoman that I couldn't sign the agreement, but that we probably wouldn't rip up the front page to report on Sony's new hardware unless, say, the company were to announce it was ditching Windows for Linux or the Mac OS. She said that was fine, excusing her NDA request with "We do that because it's policy, that's all."

Well, after this demonstration, I don't even know what I wasn't supposed to reveal--the only feature that struck me as particularly novel, a "JogDial" control to launch frequently-used programs, already exists on some Sony laptops.

It's not the first time I've wondered what the point is to all this legal skulduggery. True, technology journalists--including some freelance contributors for this section--often sign NDAs to get access to a product before it's announced, so that they can be ready with a review on the day the gadget shows up in the stores. But many of them are also a little annoyed with the industry's fetish for secrecy.

"Mostly, NDA requests are a waste of my time," said Mitch Wagner, a senior editor for the trade magazine InternetWeek. "A PR person sends me an e-mail saying she has a client with 'revolutionary' new technology that will 'raise the bar' in its technology area. I say, 'Great, what is it?' She says she can't tell me."

Stephen Satchell, a freelance writer in Incline Valley, Nev., and a former staffer with the magazine InfoWorld, noted a major problem with NDAs--if you run a story about an "NDAed" product, but based on independently reported information, how can you prove that you didn't break the agreement? In one case, a company's lawyer informed him that he had to "determine positively that my source isn't under non-disclosure, beyond a question of doubt. That means identifying the source to the company." Satchell said he turned down the deal.

Because of this, signing an NDA can be tantamount to agreeing not to do your own reporting until after the deal expires. "If it's a major, major story, then there's no way my news organization will agree to my pledging to not pursue it," said Evan Schuman, a freelance print and broadcast journalist in Whippany, N.J. "Why take that kind of a risk with one of the hottest stories of the year for us? That agreement literally prevents us from beating the competition, and yet we have no reason to believe that the competition will not beat us. It's a bad deal."

And some companies just don't know when to quit with these contracts, attempting to bind reporters for terms that outlast the announcement in question. The NDA Epson requested for the photo-printer briefing, for instance, would have required me to keep the product details secret even if Epson elected never to sell these printers after all.

Wagner related another odd habit in the business: making reporters sign NDAs just to get into the company's offices. "A few years ago there were companies in Silicon Valley which made you sign an NDA agreement as you signed in for your security badge--Sun Microsystems was one of them," he said. "This was rather preposterous--my intention on that meeting was to disclose the hell out of everything they told me and that's what they'd invited me over to do!"

I'd be happy to see this whole custom go away. I suppose NDAs are fine for people in a business relationship with a company; for instance, public-relations firms routinely sign NDAs when they bid to represent a firm. But I'm not one of those people: I don't work "with" a company's public-relations staff, and it's not my job to make their marketing easier.

But in an industry where image and buzz count more than (often nonexistent) products or profits, this kind of PRchitecture doesn't look like it's going to disappear any time soon.

Living with technology, or trying to? E-mail Rob Pegoraro at rob@twp.com.

© 2000 The Washington Post Company

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