NDAs are bullshit and should be banned.

OK, first of all, I don’t actually believe all NDAs should be banned.

NDAs are appropriate in a number of settings, for example: intellectual property, complex good-faith litigation that is just messy, and things like divorce; you don’t need one parent bad-mouthing the other for next twenty years.

So what I really want to say is that NDAs should be regulated ,restricted and scope-limited.

I got my first lesson about how nasty our legal system could be, a little over twenty years ago, in college, well before the #metoo movement. From available accounts (including my own partial view) an athlete was partying on our dorm floor, and then entered a room where a girl appeared to be passed out. Everybody was drinking and it was a little confusing what exactly was going on, but the next day this girl files police charges : She claims he anally raped while she was face-down asleep on a dorm couch in a friend’s room. The victim’s roommate was a friend of mine, she asked me what I had witnessed. I had knocked on the door of the dorm room, as it didn’t belong to the athlete. The athlete answered, and was heavily intoxicated and aggressive, he told me “fuck off, I’m making a porno” and then asked if I cared to suck his dick. He then exposed himself, and again told me to “suck my dick or fuck off.” He then slammed the door. There appeared to be no other sentient beings in the room, but the room was dark, so I couldn’t tell for sure.

The athlete was arrested, and the university administration convened emergency meetings with the local authorities, and (from what I gathered) it was decided somehow best that the university would handle this internally. Several witnesses were called, myself, including others. I described in full detail what I had seen to a panel. The administration thanked me for my honesty and told me very seriously that this was very very serious and I was supposed to please not discuss this with anybody.

I never the saw the girl again. A few days later I was told she had agreed to leave school. What I heard from her roommate unsettled me to this day: She wasn’t really supposed to talk about it, but, the athlete had filed sexual harassment charges against her, claiming somehow that she had seduced him against his will. The athlete was well-known to be wealthy, and had rounded up a team of lawyers to keep the school and the victim in line. They worked out a nice settlement. He would stay at school, she would transfer to a community college and he would drop charges against her. And of course, no one would ever mention this again.

I have been frequently disturbed, looking back, at the consummate fuckedupedness of the incident: The girl was a quiet and pleasant freshman in her first quarter at college, he was a rich athlete who was constantly drunk and belligerent. It wasn’t even the last time that year that he cleared out someone else’s room to take advantage of a drunk girl. It’s infuriating twice — first there’s the injustice of him walking around (he’s now an owner of an apparently successful business in downtown Seattle), but also disturbing is to think about how this affected her. It’s hard to imagine. Not only was she (ok so I’m speculating, *allegedly*) raped, but she apparently picked the wrong guy to rape her: She was gas-lighted by some heavy-handed legal tactics into abandoning her college aspirations during freshman year. I don’t know what happened to her, I hope she has some resilience. Not to downplay the act of rape itself, but the psychological toll of such a thing is to me hard to grasp.

Now thanks to #metoo, we all know at least some of the rest of the story. What I described above was not unique, unfortunately, but played out thousands or hundreds of thousands of times across the country.

Also unfortunately, this is certainly not the last story in which people I’ve been close to who were victims of heavy-handed legal tactics and are now in a “not really supposed to talk about it” state. Everybody makes jokes about how scummy lawyers are. Lawyers themselves play the “bad-cop-good-cop” game, telling clients about how nasty and vicious the other side’s attorneys are, and encouraging clients have to play exactly by their rules in order to stay safe.

The legal profession for years has used asshole behavior, followed by an NDA, as sort of a Schelling point for most negotiations. A conflict happens, lawyers on both sides assume the worst, and then behave the worst, and then cover the whole thing up with an NDA. It’s a good Schelling point for lawyers — it generally allows them to bill many hours without a lot of questions and also maintains their gate-keeping status.

I also believe that the confidentiality understanding and the Sixth Amendment for those accused have been conflated into something much more evil: While we all accept that even those accused of anal rape of a passed-out college freshman deserve competent representation and a fair trail against a state-appointed prosecutor, what I think is less obvious, is that this person also has the right to use expensive lawyers to destroy the accuser’s life, outside of a court room, and then expect that no one ever mentions it again, and that it’s totally normal for a lawyer to destroy a girl’s life because they are paid to do this, because “that’s how the system works.”

So what’s the solution? What I’m suggesting is that lawmakers begin discussing ways to discourage NDAs to be applied across the board for all disputes. There should be some cost involved,in particular some cost other than billed hours. For example, if states required parties who are protected by an NDA to register the NDA with the state in some sort of public registry, along with a category or justification for the NDA, then companies who had dozens of NDAs covering sexual harassment settlements would probably be motivated to fire repeated offenders after his three or four such incidents, rather than thirty or forty.

Another option is to have all NDAs be extremely specific in scope. The scope should be so specific that the intention of the NDA is clear. If the NDA appears to be intended to prohibit discussions that may be in broader public interest, the NDA should be easily struck down by a court.