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Audit clause in freelance contracts - a breach of the other clients' NDAs
Thread poster: Reea-Silvia Podeanu

Teresa Borges
Portugal
Local time: 06:40
Member (2007)
English to Portuguese
+ ...
Well... Oct 25, 2017

Henry Dotterer wrote:

Teresa Borges wrote:
Which legislation? Which governments?

Hi Teresa. I see these developments as part of the larger global trend toward increasing security requirements, which seems to me to be affecting many or most industries: medical, financial, food, travel and so on. Maybe you have experienced this first-hand as a patient or consumer, but certainly if you search "regulatory compliance" together with any industry name you choose, I think you'll get lists of laws, standards and other external regulations that companies that outsource translation may be subject to, and possibly/probably so throughout their supply chains. Here is a page I found that addresses the topic generally: http://www.bakertilly.com/services/risk-internal-audit-cybersecurity/regulatory-compliance/ ("Nearly 70 percent of companies are subject to five or more regulatory requirements. Intensified government scrutiny continues to raise this bar, further increasing the risk of noncompliance.")

I don't think there is anyone in our industry sitting around thinking about what additional burden they can put on themselves by introducing clauses such as home audit, with all the friction that surrounds it. It is more likely need, or at least perceived need, to do so in order to comply with external or customer requirements.

And by the way, I think Thomas has a point. I have been asking around for whether anyone has actually ever done a home audit, and so far no one I have talked to has even heard of one being done. (Has anyone reading this heard of it?)

Of course it may be that the situation is still developing.


I just can’t see how an audit clause can improve security when everyone says that it will never be put into practice…


 

Lincoln Hui  Identity Verified
Hong Kong
Local time: 13:40
Member
Chinese to English
+ ...
GIGO Oct 25, 2017

When asked here what their policy is on this practice, we see that 37% of respondents are willing to comply with the home audit term as standard, 42% are willing to consider agreeing to it, depending on the overall project, and 19% indicate that they would not agree to this, regardless of other contract terms. (2% explicitly indicate a choice not to state a position on this.)

That's because you're asking a fundamentally flawed open-ended question.

Question: Are you willing to kill another person?
1. Yes, all the time
2. Yes, depending on the situation
3. No, never

Now, if you answered two, what's behind the "maybe"? Are you willing to kill if it makes you $10 richer? Are you willing to kill if you or your family's lives are in direct danger? Do these two mean anywhere near the same thing?

When you're not specific with your question, you get to spin the answer any way you want, without the risk of it actually reflecting the truth.


 

Christine Andersen  Identity Verified
Denmark
Local time: 07:40
Member (2003)
Danish to English
+ ...
Wow Oct 25, 2017

I have translated some invasive ISO audit clauses for clients (I just translate what the text says...). But on consideration, if it is about preventing child labour, hazardous chemicals or unreasonable working conditions, I thought I could go along with it.

Now I am wondering.
The big firms trample on everyone else's privacy and security.
The middle-sized manufacturers shout 'child labour' if the owner's son in a family business helps out for a couple of hours after sch
... See more
I have translated some invasive ISO audit clauses for clients (I just translate what the text says...). But on consideration, if it is about preventing child labour, hazardous chemicals or unreasonable working conditions, I thought I could go along with it.

Now I am wondering.
The big firms trample on everyone else's privacy and security.
The middle-sized manufacturers shout 'child labour' if the owner's son in a family business helps out for a couple of hours after school. Well, it could happen in theory...

In the name of security, translators are supposed to let clients and their agents trample all over other clients' confidential documents and invade our privacy.

If you start that petition, Reea-Silvia, please put my name on it or send it to me to sign!

I suddenly thought of Martin Niemöller:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.

I hope we are still far from that situation, but thank you for speaking out!
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Reea-Silvia Podeanu  Identity Verified
Romania
Local time: 08:40
Member (2011)
English to Romanian
+ ...
TOPIC STARTER
Hi, everybody... Oct 25, 2017

Thank you all of you for your kind replies. All of you have made excellent points and I totally agree with you (well, not entirely with Henry! ).

Christine, Martin Niemöller is sooo right. This is exactly how it happens.

I have lived almost half of my life in communism (both in the apparently happy times as well as in the darkest times of the Romanian communism) and I became capable of recognizing commu
... See more
Thank you all of you for your kind replies. All of you have made excellent points and I totally agree with you (well, not entirely with Henry! ).

Christine, Martin Niemöller is sooo right. This is exactly how it happens.

I have lived almost half of my life in communism (both in the apparently happy times as well as in the darkest times of the Romanian communism) and I became capable of recognizing communism anywhere I see it. Even in countries that think they are so above such things. I don't want to offend anybody. It is a fact.

I have learned over time, after years of reading, studying, researching, and translating that communism, fascism, military dictatorship, etc. and democracy are in fact one and the same thing. Oppression and tyranny are the same everywhere, no matter the name we give them. Maybe it is easier to see them as they are in fascism and communism, but democracy sounds like what Shakespeare once said: „This is a way to kill a wife with kindness” (The Taming of the Shrew).

You know, I have received the other day a video from an American show (the show of a comedian, stand up comedy, I think). The person who sent it probably thought it was funny - Romanians are well known for making fun of themselves and things like these. It is The Last Week Tonigh with John Oliver. You can watch the video here: https://www.youtube.com/watch?v=XEVlyP4_11M. And at some point the presenter was talking about Section 215 of the American Patriot Act. A US congresswoman was interviewed and she was trying to say that Section 215 is not needed anymore and that they should get rid of it. When she said that, the second she said that she was interrupted from the studio, the presenter said that very important breaking news appeared and they cut the lady off. And the very important breaking news were about Justin Bieber being arrested or something. You can draw the conclusion yourselves.

As Einstein said: „The world is a dangerous place to live; not because of the people who are evil, but because of the people who don't do anything about it.”

If we shut up, they will bury us. Maybe we cannot change the world or maybe we cannot change the world in one day but we can decide what we accept... one day at a time... and one contract at a time.

I am seriously thinking about that petition and I could see that abroad a petition really has power. Only that... I have no idea to whom we should address it. Who has the authority in such a situation?

We didn't manage to convince Henry to take down that option in the security card. So how will we convince other people?

Well, maybe the only people we need to convince are the translators. A petition or a pledge would spread the word. So to whom we should address it?


Any ideas?


[Edited at 2017-10-26 06:40 GMT]

[Edited at 2017-10-26 11:29 GMT]
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Reea-Silvia Podeanu  Identity Verified
Romania
Local time: 08:40
Member (2011)
English to Romanian
+ ...
TOPIC STARTER
And... Oct 26, 2017

It was very interesting to see how the interest moved suddenly away when I mentioned section 215 and the Patriot Act.... My point exactly!

I will think of the text of that petition...

Any ideas about to whom we address it and the arguments that it should contain are very welcome. And any ideas about what else we should do, are very welcome, too.

[Edited at 2017-10-26 06:01 GMT]


 

Reea-Silvia Podeanu  Identity Verified
Romania
Local time: 08:40
Member (2011)
English to Romanian
+ ...
TOPIC STARTER
It is true... Oct 26, 2017

God works in mysterious ways. I have received this video yesterday but I could watch it only now. I guess it says it all...

https://www.youtube.com/watch?v=3sK3wJAxGfs&list=RDG11vVf9nSbc&index=4

https://www.youtube.com/watch?v=G11vVf9nSbc
... See more
God works in mysterious ways. I have received this video yesterday but I could watch it only now. I guess it says it all...

https://www.youtube.com/watch?v=3sK3wJAxGfs&list=RDG11vVf9nSbc&index=4

https://www.youtube.com/watch?v=G11vVf9nSbc (English subtitles)

We do have to keep our ground. Please, spread the word about this clause at least until we will manage to start a petition. Thank you very much.

[Edited at 2017-10-26 09:19 GMT]
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Nikki Scott-Despaigne  Identity Verified
Local time: 07:40
French to English
Data protection, security. Oct 26, 2017

Teresa Borges wrote:
I just can’t see how an audit clause can improve security when everyone says that it will never be put into practice…


Not to mention the fact that in terms of security, we need to be careful with our data, and act as responsible users, take reasonable steps, etc. That goes without saying. However, without being a scaremonger, just how safe is our data anyway?

I'm not about to run out into the street spouting forth content about who, what, where, why and when of my clients and the work they ask me to do. I'd be shooting myself in the foot if I did. Nor am I about to invite my clients to do so "chez moi". I prefer to spend my time doing the work and trying to earn a living from it. I think my clients do too. When security is a genuine issue, then the translator travels to work at the client's premises.

If those in the know can hack into the Pentagon's system, they can probably hack into mine. The fact is, they probably have better things to do. And so do I.

The audit clause thing smacks of the 1950's and the reds-under-the-bed. This is not progress, just scaremongering and plain old-fashioned bureaucracy.


 

Teresa Borges
Portugal
Local time: 06:40
Member (2007)
English to Portuguese
+ ...
Hear! Hear! Oct 26, 2017

Couldn't agree more, Nikki! In two words: bureaucratic paranoia or legalese paranoia...

[Edited at 2017-10-26 12:34 GMT]


 

Henry Dotterer
Local time: 01:40
SITE FOUNDER
How do you suggest the option be presented, Lincoln? Oct 26, 2017

Lincoln Hui wrote:

When asked here what their policy is on this practice, we see that 37% of respondents are willing to comply with the home audit term as standard, 42% are willing to consider agreeing to it, depending on the overall project, and 19% indicate that they would not agree to this, regardless of other contract terms. (2% explicitly indicate a choice not to state a position on this.)

That's because you're asking a fundamentally flawed open-ended question.

Question: Are you willing to kill another person?
1. Yes, all the time
2. Yes, depending on the situation
3. No, never

Now, if you answered two, what's behind the "maybe"? Are you willing to kill if it makes you $10 richer? Are you willing to kill if you or your family's lives are in direct danger? Do these two mean anywhere near the same thing?

When you're not specific with your question, you get to spin the answer any way you want, without the risk of it actually reflecting the truth.

ProZ.com has no bias on this topic and no reason to spin anything. If you can suggest an improvement in the way the options are presented for expressing one's security practices, please do so. Here is the page: https://www.proz.com/securepro/security-practices


 

Thomas T. Frost  Identity Verified
Member (2014)
Danish to English
+ ...
Counterproductive clause Oct 26, 2017

The audit clause is probably counterproductive.

One outsourcer was surprised I had even read their NDA. I think this says a lot about the type of translators they usually work with. It’s true that reading hundreds of pages per year of legal yada yada in consumer contracts would be a waste of time, not least in countries with strong consumer protection laws, but freelance translators are not protected by consumer laws.

An audit clause does not improve security if tran
... See more
The audit clause is probably counterproductive.

One outsourcer was surprised I had even read their NDA. I think this says a lot about the type of translators they usually work with. It’s true that reading hundreds of pages per year of legal yada yada in consumer contracts would be a waste of time, not least in countries with strong consumer protection laws, but freelance translators are not protected by consumer laws.

An audit clause does not improve security if translators are unaware of it, and even if they are, the audit clause in itself still does not improve security.

Those translators who are the most aware of security risks are also likely to be the ones who reject the audit clause, so the outsourcer is likely to end up with the least security-conscious translators.

Genuine security is not achieved through empty contractual clauses that in reality are no more than window dressing.

Countless outsourcers share credentials for their servers amongst several translators, and many such passwords are trivial and very easy to hack. If data is stolen, they are unable to determine which individual was connected to their server when. This would be a good place to start.
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Thomas T. Frost  Identity Verified
Member (2014)
Danish to English
+ ...
Security practices Oct 26, 2017

Henry Dotterer wrote:

If you can suggest an improvement in the way the options are presented for expressing one's security practices, please do so. Here is the page: https://www.proz.com/securepro/security-practices


There were a few items I wondered about. Here are my thoughts:

1) "Reference material confidential: I consider reference materials to be confidential; I do not share such materials, and would not use them on other client's projects, without permission."

Reference materials are not automatically confidential. It can hardly be considered a secret that a keyboard is a clavier in French, and you cannot be expected to unlearn such information. Languages do not belong to outsourcers. A given glossary can belong to an outsourcer, but clauses that say we cannot reuse TMs (and perhaps glossaries) essentially have the same effect as saying that we are not allowed to learn and improve our skills as a result of any specific translation. Well we'd remain beginners all our lives then. Each new client gains from our combined experience from previous tasks, but now some outsourcers are telling us we cannot do that.

2) "No cloud storage: I am willing to agree to store content only locally on my own machine(s), i.e., not in "the cloud"."

Any computer connected to the Internet is conceptually in the "cloud". The "cloud" is just a bunch of servers connected to the Internet, just as the translator's own computer. There is no inherent reason to automatically consider one computer more risky than another. Such a clause provides false security. Not automatically backing up data to an online server comes with the risk of delayed translations and lost work, so I would not agree to this. To meet the "no cloud storage" clause, the translator would have to take their computer off the Internet.

3) "File deletion: I delete project files upon completion of work, or am willing to do so upon request."

This clause ought to be combined with a clause to say that if the outsourcer requests file deletion, there can be no outstanding disputes related to the work provided, it must have been paid in full (subject to settled disputes), and the outsourcer waives all rights to dispute anything related to the work provided in the future, as the translator will be unable to provide evidence for the work provided. The outsourcer must furthermore hold harmless the translator for all liability related to the work provided.

In some jurisdictions, the translator may furthermore be required to keep such data for a certain number of years, subject to statutes of limitation and possibly other legislation.

There will be a few more comments when I have time.


 

eski  Identity Verified
Mexico
Local time: 00:40
Member (2008)
Spanish to English
+ ...

MODERATOR
Totally Agree With Your Position Oct 26, 2017

I totally agree with your position and I think that you have given us a very valid heads up. Although I haven't had to deal with such a situation as yet, I think it's important to guard against any infringement of our rights as independent freelancers and not allow the inclusión of such clauses in NDAs to hinder our privacy. Thanks for bringing up what I consider an important topic.

 

Thomas T. Frost  Identity Verified
Member (2014)
Danish to English
+ ...
"I am willing to agree not to use TMs that contain data from other clients" Oct 26, 2017

We'll soon be required not to use the same brain for different clients, I guess, as our brains contain data from other clients. It's getting ridiculous and more and more unproductive, being treated as if our skills were a bunch of widgets in a warehouse that you can separate by sizes, colours, owners and numbers.

 

Reea-Silvia Podeanu  Identity Verified
Romania
Local time: 08:40
Member (2011)
English to Romanian
+ ...
TOPIC STARTER
Very well put! :))) Oct 26, 2017

Thomas T. Frost wrote:

We'll soon be required not to use the same brain for different clients, I guess, as our brains contain data from other clients. It's getting ridiculous and more and more unproductive, being treated as if our skills were a bunch of widgets in a warehouse that you can separate by sizes, colours, owners and numbers.


 

John Fossey  Identity Verified
Canada
Local time: 01:40
Member (2008)
French to English
How would a "home audit" even work? Oct 26, 2017

How could a "home audit" even work in practice? You would be violating other people's privacy, not just other client's NDAs. There is a great deal of personal information in our computers that belong to other people, just by virtue of the nature of our work. In my jurisdiction, the Privacy law stipulates: "Any person collecting personal information relating to another person may collect such information only from the person concerned, unless the latter consents to collection from third person... See more
How could a "home audit" even work in practice? You would be violating other people's privacy, not just other client's NDAs. There is a great deal of personal information in our computers that belong to other people, just by virtue of the nature of our work. In my jurisdiction, the Privacy law stipulates: "Any person collecting personal information relating to another person may collect such information only from the person concerned, unless the latter consents to collection from third persons."

So as soon as a "home auditor" uncovers anyone's personal information other than the translator's, they are breaking the law. The translator is probably breaking the law to reveal it.
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