This is no longer a question of ‘the SEC goes around fining firms whose confidentiality clauses fail to explicitly exempt statements to the SEC,’ which is totally a thing the SEC does, Matt Levine describes the trade as getting your employment contract, circling the confidentiality clause in red with the annotation “$” and sending it in as a whistleblower complaint. And yes, you get fined for that, but it’s more than a little ticky-tacky.
This is different. This is explicitly saying no to whistleblowing. That is not legal.
Are you sure about this interpretation?
(DISCLAIMER: I am not a lawyer at all, etc, etc.)
This came up on LW recently, and I didn’t find the letter convincing as being the second rather than the first situation.
Remember, the whole legal theory behind the SEC’s cases is that a clause like this:
I, EMPLOYEE, will not disclose EMPLOYER’S confidential information to anyone without EMPLOYER’S permission. If I do, I understand that EMPLOYER may pursue civil and criminal penalties, and if I receive compensation for disclosing such information I understand that EMPLOYER may recover said compensation from me in addition to any legal penalties.
if it doesn’t contain an explicit carveout for the SEC, is itself ‘a threat of criminal prosecution for whistleblowing’ and ‘a requirement to give up whistleblowing payments’.
If OpenAI’s NDAs actually contain a clause like ‘I will not tell the SEC anything, and if I do I may not receive whistleblower payments’, I agree that would be very bad, much worse than a failure-to-exempt-the-SEC problem.
But I think the letter sounds much more like the usual failure-to-exempt-the-SEC. Is there something I’m missing here?
Are you sure about this interpretation?
(DISCLAIMER: I am not a lawyer at all, etc, etc.)
This came up on LW recently, and I didn’t find the letter convincing as being the second rather than the first situation.
Remember, the whole legal theory behind the SEC’s cases is that a clause like this:
if it doesn’t contain an explicit carveout for the SEC, is itself ‘a threat of criminal prosecution for whistleblowing’ and ‘a requirement to give up whistleblowing payments’.
If OpenAI’s NDAs actually contain a clause like ‘I will not tell the SEC anything, and if I do I may not receive whistleblower payments’, I agree that would be very bad, much worse than a failure-to-exempt-the-SEC problem.
But I think the letter sounds much more like the usual failure-to-exempt-the-SEC. Is there something I’m missing here?