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Confidentiality clause - Above and beyond?
Thread poster: Alice Wolfe, DDS

Alice Wolfe, DDS  Identity Verified
United States
Local time: 20:25
Member (2003)
English to Danish
+ ...
Feb 23, 2006

A major TA I have worked with for many years have presented all their freelancers with a Confidentiality Contract to sign. Nothing new or strange about that.

However, it is the first time I have seen this clause: "Partner [the translator] will take all necessary steps to ensure that no copies, electronic or otherwise, of such information and materials are retained by Partner and will provide the Company and Customer Company reasonable access to Partner’s premises, files and equipment to verify compliance with this obligation."

Am I wrong not to want to sign this? I don't expect them to come traipsing into my home office to check if I have indeed deleted their files, but still....

Has anyone else come across something similar? I wrote them back that I couldn't sign the contract unless this clause was deleted, but today I received word from them that "their legal team just confirmed that this line item needs to be there in compliance with the contracts signed with clients like AA, BB, CC ...
They reminded me that this is a protective clause and not a threat and more importantly that it has never needed to be invoked by the Company or any of our clients."

I am still uncomfortable.


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Maria Karra  Identity Verified
United States
Local time: 20:25
Member (2000)
Greek to English
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I'd be uncomfortable too Feb 23, 2006

Alice Wolfe, DDS wrote:
They reminded me that this is a protective clause and not a threat and more importantly that it has never needed to be invoked by the Company or any of our clients."

I am still uncomfortable.


I've never seen such a clause before in NDAs that I've signed. I admit that if I found myself in this situation and if this were a significant project that I wanted to do, I'd probably sign, even if I didn't feel very comfortable with it.

The closest thing I've come across was the confidentiality statement I had to sign when I was preparing my dissertation. Because I had to interview people (record their speech and analyze it), I had to submit a statement to them and to the university that included a section describing where I would store the recordings (full address, description of the premises, description of the file cabinet, who had access to the building, etc.), and stating that nobody but me had access to that cabinet, and what steps I was taking to ensure that nobody would have access to those recordings for 5 years following submission of the dissertation.
I thought the university was exaggerating, but I did understand their concern, as well as that of the participants. But between that and having someone come to my office to verify that e.g. the cabinet would be locked at all times, there's a big difference And I know that your client probably won't have to do that, but it's the principle that's bothering you. It would bother me too. If you're agreeing to take all necessary steps to respect confidentiality, they should also agree to respect your privacy.
Maria


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Wouter van Kampen
Thailand
Local time: 07:25
Danish to Dutch
+ ...
totally ridiculous Feb 23, 2006

Just strike through the

"and will provide ........". ;

and then sign the contract making a note with your signature that you have adapted paragraph such and such.

I do this all the time with ridiculous clauses and never receive any comments. These agencies just keep on sending jobs.

It is however a different thing when you are asked to translate documents that are related to national security or that have to do with high stake industrial research. In such cases customers will usually ask you to do the translation at their premises.

[quote]Alice Wolfe, DDS wrote:

--8


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RobinB  Identity Verified
Germany
Local time: 02:25
German to English
If AA, BB and CC... Feb 23, 2006

...are banks or other financial services institutions, then this sort of "pass-through" confidentiality clause is pretty much standard nowadays. The confidentiality agreements we are required by our banking customers to sign generally contain such clauses, though we have them modified to preclude the customers and their agents having access to data relating to other customers, in other words we're permitted to ring-fence access to the data.

As far as the non-retention of data is concerned, we agree on a "destroy if instructed" clause. Of course our clients understand that we want to keep things like TMs, but they're willing to take the hit if they tell us to delete them. Also, data deletion automatically invalidates any liability we have.

However, we always insert a clause that says we have the right not to delete data if that would make us in breach of statutory provisions, e.g. on insider trading records, or if we have reason to believe that we are being instructed to delete data to hinder a criminal or other official investigation.

Finally, of course, all of these clauses apply only to data that's genuinely confidential, i.e. has not been released into the public domain.

These sort of arrangements are pretty common in today's world, and I don't see any reason for translators to expect to be treated differently to other service providers.

HTH,
Robin


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Alice Wolfe, DDS  Identity Verified
United States
Local time: 20:25
Member (2003)
English to Danish
+ ...
TOPIC STARTER
AA, BB and CC are not financial institutions... Feb 23, 2006

I do understand the need for extra layers of confidentiality when dealing with sensitive matters, such as national security, banking etc. but we're talking about more mainstream translations done at the translator's home office. I have done the more sensitive kind at the company's premises on their equipment many times over the years, and am more than perfectly happy to do so again.

I don't expect to be treated differently from other service providers, but I doubt that any would allow their clients - if only in theory - access to their "premises, files and equipment to verify compliance".

Alice


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RobinB  Identity Verified
Germany
Local time: 02:25
German to English
"Home" office is not the point Feb 24, 2006

Alice,

There could well be other reasons for this, typically because the translations contain, or could contain, "price-sensitive" information, for regulatory reasons, or simply because the (end-) client's lawyers are freaked about IPR leakage - all cases of "mainstream" translation. It's not my experience, though, that this sort of thing is inserted arbitrarily into contracts or T&Cs. Another point is that modern technology means that cases where the end-client wants you to work on-site are becoming increasingly rare - the only scenario I can think of off the top of my head would be working in a data room (M&A work where everybody involved is restricted to a room or suite of rooms).

One thing has to be very clear, though - the fact that you work at home is entirely irrelevant. If you don't want strangers traipsing through your home, you'd better not work there in the first place. It's certainly not possible to claim that because you (I don't mean you personally!) work from a home office, you have the right to more privacy than other service providers.

I think you'll find that other service providers do take this sort of thing in their stride, that it's part and parcel of the modern business world where so much is subcontracted/outsourced, and today's ITC techologies allow highly secure remote, offsite working in many situations (though I do wish the clients would standardise on the same security systems - it's a real pain having to use and administer up to half a dozen different secure transmission architectures).

So as far as your T&C clause is concerned, my suggestion is to insist on a couple of amendments (as per my first message) and then sign the thing.

Robin


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Sylvia Magotsch
Germany
Local time: 02:25
English to German
+ ...
I guess I know which contract you are talking about... Feb 24, 2006

Hello, Alice!

I think I know which contact you are talking about, since I have received a contract with exactly the same wording and did not accept this clause plus several others which would have put me in a very difficult situation (lawwise).
I told the client that I am sorry but cannot accept such clauses, because I have to protect my business. Alas, and to cut a long story short - the vendor manager told me that they could no longer work with me if I was not willing to accept their conditions...which might have been the best solution for both sides...

Sylvia


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xxxMarc P  Identity Verified
Local time: 02:25
German to English
+ ...
Confidentiality clause - Above and beyond? Feb 24, 2006

RobinB wrote:

in other words we're permitted to ring-fence access to the data.


OK Robin, I'll bite.

If you're allowed to ring-fence access to the data, how will an investigating customer be able to verify that copies of his data don't exist on the other side of the fence, e.g. with the data from other customers? Or, for that matter, outside the office altogether, which is where I keep snapshot images of all my data?

Marc


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RobinB  Identity Verified
Germany
Local time: 02:25
German to English
Their problem... Feb 24, 2006

MarcPrior wrote: If you're allowed to ring-fence access to the data, how will an investigating customer be able to verify that copies of his data don't exist on the other side of the fence, e.g. with the data from other customers? Or, for that matter, outside the office altogether, which is where I keep snapshot images of all my data? Marc


They can always seek a court order if they've got a lot of money to burn. Unlikely to get it, though, as I don't think a court will allow one company to gain access this way to other companies' confidential data.

As for "outside the office altogether", that's no defence. It doesn't matter where data is stored. It's the same with the taxman - if they have grounds to believe that information relating to a tax case involving you is stored in your granny's garden shed, then your granny's going to wake up one morning to find a hole in the garden

Robin


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xxxMarc P  Identity Verified
Local time: 02:25
German to English
+ ...
Confidentiality clause - Above and beyond? Feb 24, 2006

RobinB wrote:

As for "outside the office altogether", that's no defence. It doesn't matter where data is stored. It's the same with the taxman - if they have grounds to believe that information relating to a tax case involving you is stored in your granny's garden shed, then your granny's going to wake up one morning to find a hole in the garden


No legal defence, no. But if the company doesn't know where the information is buried, how does it know where to dig (court order or no court order)?

If you were really going to keep illicit copies of confidential data, surely you wouldn't keep them in the one place where the investigator is allowed to look, or tell the investigator where else to look?

Perhaps it's just my surfeit of criminal energy seeking release...

Marc


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Sylvia Magotsch
Germany
Local time: 02:25
English to German
+ ...
Just another interesting aspect... Feb 24, 2006

What I find even more intriguing is: how do I protect data from other clients from being accessed by a customer who "just wants to check on his data" on my premises? How do I do it, when all data of all clients are stored on one single computer?
And: why is a company allowed to come into my office and search for information? AFAIK this requires a search warrant by the police or a judge.
And: Am I, on the other hand, allowed to go to their offices and look if I can find some information about me?

Kind of thoughtful...
Sylvia


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RobinB  Identity Verified
Germany
Local time: 02:25
German to English
Reasonable belief test Feb 24, 2006

MarcPrior wrote: If you were really going to keep illicit copies of confidential data, surely you wouldn't keep them in the one place where the investigator is allowed to look, or tell the investigator where else to look? Marc


As with the taxman, there is a "reasonable belief" test, e.g. information in your office points to other information being kept offsite. Or they say, "Oh look, you wrote on ProZ a couple of months ago that you were keeping copies of all the really juicy confidential stuff in your granny's potting shed. Stupid berk."

Plus, as with so many situations in life, you should never discount sheer stupidity. I think you'll agree that that particular ailment is endemic, especially among translators...

Robin


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NancyLynn
Canada
Local time: 20:25
Member (2002)
French to English
+ ...

MODERATOR
:-) Feb 24, 2006

MarcPrior wrote:

If you were really going to keep illicit copies of confidential data, surely you wouldn't keep them in the one place where the investigator is allowed to look, or tell the investigator where else to look?

Perhaps it's just my surfeit of criminal energy seeking release...

Marc




Why not post something about keeping this information in the wood shed? Reminds me of a joke where the Newfies got the Royal Canadian Mounted Police to split their entire winter wood supply in search of non-existant drugs...:lol:

Nancy


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xxxMarc P  Identity Verified
Local time: 02:25
German to English
+ ...
Confidentiality clause - Above and beyond? Feb 24, 2006



[Edited at 2006-02-24 14:30]


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xxxMarc P  Identity Verified
Local time: 02:25
German to English
+ ...
Confidentiality clause - Above and beyond? Feb 24, 2006

NancyLynn wrote:

Why not post something about keeping this information in the wood shed? Reminds me of a joke where the Newfies got the Royal Canadian Mounted Police to split their entire winter wood supply in search of non-existant drugs...:lol:


I wonder how many "localizations" of that joke there are.

An aging man lived alone in Ireland. His only son was in Long Kesh Prison, and he didn't know anyone who would spade up his potato garden.

The old man wrote to his son about it, and received this reply, "For HEAVENS SAKE, don't dig up that garden, that's where I buried the GUNS!!!!!"

At 4 A.M. the next morning, a dozen British soldiers showed up and dug up the entire garden, but didn't find any guns.

Confused, the man wrote to his son telling him what happened and asking him what to do next.

His son's reply was: "Just plant your potatoes."


Marc


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