I think you're overlooking the core asymmetry between prohibition of blackmail and NDAs: coercion. Blackmail is one-sided coercion while an NDA is a mutually-agreed contract. No one can be compelled to sign an NDA.
The point about it mattering who initiates is accurate: If you come to me and offer me an NDA to keep quiet about your (non-criminal) peccadilloes, that's legal. If I approach you with a word-for-word identical contract, that's a crime. But the difference is about the coercive nature of the two requests, not about the power differential (or, at least, not *only* about the power differential).
And it should be highlighted that NDAs cannot prevent the disclosure of crimes to the authorities. So to the extent that blackmail is submission to elites, we do not extend that submission to protection of criminal acts.
All contracts are made under the threat that the other side won't agree to specific contract terms. Blackmail and NDA contracts are both voluntary, under the threat of what happens if you don't agree. In contract negotiations, you are always allowed to threaten to do or not do things you are allowed to do or not do.
My understanding is that NDA is coercive. It typically specifies an amount of money you'll be forced to pay the company if you break the NDA. For it to be legally binding, the company must be able to make an argument that your breaking that NDA was reasonably expected to cause the company harm equivalent to that amount of money. But I'm not a lawyer.
Robin's point is that blackmail isn't more coercive than an NDA. It is functionally the same as an NDA: one party to the contract gives person B money, in exchange for person B not making information public.
The NDA doesn't specify money that you'll have to pay if you break it, it specifies money that the you receive for promising not to break it... and which you'll obviously have to pay back if you do break it, but that's just because you invalidated the agreement and therefore should no longer be compensated for it.
I was fired from a job, and paid a lot of money to sign an NDA saying I wouldn't disclose their reason for firing me, which was illegal. This makes Robin's claim that an NDA is the same as blackmail more-obvious: I had a blackmail contract with the company, with the only functional difference being that they proposed the blackmail, not me.
Are you saying that NDA is non-binding, even though I took the money?
> As the main effect of anti-blackmail laws is to allow rich celebrities to more easily evade norms and laws, my best explanation for such laws is a widespread desire to give them what they want
Or is it about legislators wanting these laws (eg to protect themselves from their own misbehaviour)? So they passed them without real democratic mandate, either by bamboozling voters into thinking blackmail is bad, or just going under voters’ radar (eg not campaigning about the issue).
Ie voters wouldn’t/shouldn’t want this legislation, but haven’t thought hard enough about it.
Incidentally AFAIK in France revealing politicians’/celebrities’ lawful but immoral behaviour (without blackmail), eg marital affairs exposed by the press, is treated as a breach of their confidentiality and hence is illegal.
Also incidentally, I’ve heard that current case law in the UK means that NDAs covering up such lawful wrongdoing are now unenforceable. (Though that doesn’t stop celebrities and organisations trying to get people to sign aggressively-worded ones.)
I'm not sure this is a matter of rich & powerful versus poor & powerless.
US law is even funnier than average, but if it's about a crime, I'm not sure an NDA is valid.
A core aspect is that separately, it's legal for Cheater to cheat on Spouse, it's legal for Observer to tell Spouse, it's legal for Cheater to give money to Observer, but taken together, it's blackmail and illegal.
I don't think anything you said rejects the post. The law clearly favors blackmail in the direction of the powerful. It is true that US law is screwed up in a general sense, but this does not change the point being made.
NDA itself is broad. Can be used to protect reputation like this post implies, or just to protect info that gives a temporary competitive advantage. The former can be seen as legal blackmail, while the latter is a weird enforcement of intellectual property.
"The law clearly favors blackmail in the direction of the powerful."
The powerful have obviously, by definition, more power, but on top of that, what do you (both Robin Hanson and Phil) refer to? This is an informative question, not challenging.
If you're rich and powerful, you can both react better to blackmail, by easier paying, through preventive NDAs, through law-firm power and expensive proceedings, and you can more easily blackmail, through better possiblities to have things published, and again better law-firm power. You're also a more interesting victim maybe, in that you can pay more and damage to your reputation can lose more, though that latter had better be seen in relative terms as well.
And then there's sometimes the idea in libel law that a "public" person has to live with less privacy and more scrutiny.
You often hear an opinion that NDAs protecting trade secrets are just fine, but NDAs to keep quiet about criminal conduct by the persons former employer are bad.
There’s already some restrictions on this, like contracts to commit crimes aren’t enforceable and (I think) a contract can’t require you to lie when questioned under oath.
But still, there’s a sentiment that NDAs to keep quiet about your employers misconduct out to be banned/unenforceable for the same public policy reasons that contracts to commit crimes aren’t enforceable.
I'm thinking of the term "false equivalency", such as saying, "It has four legs, so it is a table."
We often try to analyze in a way that will focus on a limited list of aspects in the comparisons used to represent the relationship between two things. This can be more easily noticed and discussed, even where a disagreement will also be maintained by two minds. However, if there is a third object in relation to this process, the complexity becomes much more difficult to list out such that everyone grasps the same what the factors of the contention identify.
In this context, referring to a "Non-Disclosure Agreement" as compared to a notice of "Blackmail" the additional factors center around how law will use the reasoning recorded in courts in history for reference on the meaning of terms in a written contract such as a "Non-Disclosure Agreement" which is meant to protect the investor banking finance around a new dramatic fiction story, TV show, Theater production, or movie, so that it is not in some part a content someone else enjoyed positive sales of the sensation of surprise in the audience entertainment experience, before the full original production could be completed and offered to the same otherwise considered as "open" market place.
The novelty is why the new book may be referred to as a "novel" in the first place. If someone else undercuts disclosure of the story meaning content in a faster production they were able to create and package and sell ahead of your formal company, then you will realize the financial loss because they exploited the novelty of your invention to the public interests seeking entertainment stimulation, and now your original is not received as the first or the actual original because in the course of their social experience they saw part of it already from someone else they don't know stole the story meanings out of access to your original works.
So will simply say, the early bird gets the worm. But that is why it takes a society like that around the court of Queen Victoria for someone like William Shakespeare to have the chance to create historically received theatre performances and publications at the Globe Theatre in London. If a cheap Paris paperback publishing house can sell a simpler fiction story ahead of the opening night of the play, much fewer are enticed to pay for tickets, and less sensation about the novelty offered by this writer will be of any profit to the industry of that work.
You see, the third object in this relational process is the reason that reducing the debate as if there are only two sides, like objects in motion in social-economics relative only to each other, makes the explanation less useful to the social reality of the actual history in this question. There is no legal reason history of reference that would be in a statutory law record in a court about the justification for "blackmail" by comparison, because it is indeed a two-sided process in purpose. It is not seeking to retain conditions in engagement of the wider economic infrastructure for the purpose of better reassurance to investors that the end result in the business venture will be of sufficient value across the domain of the market, as there is no consideration of impact upon the market.
In this specific respect, it is looking like the logical fallacy of a "false equivalency" to compare the NDA as a legal history of a business marketplace investment protective practice, like it violates some "Libertine" ideal of totally open laze fairs wildly open and without rules kind of money transaction system lacking any financial record accounting for what was paid in, compared to the venture to achieve what may be paid back out in the later result that defines the purpose of the venture. In this respect, most in social economics will not see an NDA like it were a kind of "Blackmail" because with that you would never have both sides experience a solicitation to the process as an option meaning to protect the third object in this relational system, which is the moment for the first time, that the content produced carefully in art will become the sensational discovery and surprise before the ticket sales to that production experience in hopes of a sense of reward both to the ventures, and to the public economic domains of the marketplace. Blackmail is an ambush contract with no established legal reasoning history sanctioned in any court of law, to be any kind of statute by any means, validating it as a non-toxic process upon the sustainable social dynamics of the marketplace. It is two-dimensional, with one winner and one loser, and no regard for the economic impact of unsustainable money meanings found in theft.
So, as a published scriptwriter, author, and recovering patent owner who's patent claim only exists won 26 years after original disclosure documents, is because of the date of copyrights on original writings also published, my contention is those who simply engage in "libertine" tactics to take whatever they feel they should even making threat of blackmail to shut up the complaint of the artists or engineer who made that first example no one respected at that time, then failure to permit consideration, as it shows in the marketplace history only undercuts the idea if you work hard, and provide your works for use and benefit, then the community will replay you. So then, work hard, and you will get ahead. This is why NDA's protect the works of creators. It is not blackmail. To equate it as such takes away established legal history reasoning records meant to protect the rights of the originating researching and crafting artist/inventor in a lawfully practising economy. That would be a conventional argument in the Author's Guild or the Writer's Guild, based on what I have seen being a member of both.
I think you're overlooking the core asymmetry between prohibition of blackmail and NDAs: coercion. Blackmail is one-sided coercion while an NDA is a mutually-agreed contract. No one can be compelled to sign an NDA.
The point about it mattering who initiates is accurate: If you come to me and offer me an NDA to keep quiet about your (non-criminal) peccadilloes, that's legal. If I approach you with a word-for-word identical contract, that's a crime. But the difference is about the coercive nature of the two requests, not about the power differential (or, at least, not *only* about the power differential).
And it should be highlighted that NDAs cannot prevent the disclosure of crimes to the authorities. So to the extent that blackmail is submission to elites, we do not extend that submission to protection of criminal acts.
All contracts are made under the threat that the other side won't agree to specific contract terms. Blackmail and NDA contracts are both voluntary, under the threat of what happens if you don't agree. In contract negotiations, you are always allowed to threaten to do or not do things you are allowed to do or not do.
The "threat" if you don't sign an NDA is that you won't get your payday. That's not coercive.
My understanding is that NDA is coercive. It typically specifies an amount of money you'll be forced to pay the company if you break the NDA. For it to be legally binding, the company must be able to make an argument that your breaking that NDA was reasonably expected to cause the company harm equivalent to that amount of money. But I'm not a lawyer.
Robin's point is that blackmail isn't more coercive than an NDA. It is functionally the same as an NDA: one party to the contract gives person B money, in exchange for person B not making information public.
The NDA doesn't specify money that you'll have to pay if you break it, it specifies money that the you receive for promising not to break it... and which you'll obviously have to pay back if you do break it, but that's just because you invalidated the agreement and therefore should no longer be compensated for it.
I was fired from a job, and paid a lot of money to sign an NDA saying I wouldn't disclose their reason for firing me, which was illegal. This makes Robin's claim that an NDA is the same as blackmail more-obvious: I had a blackmail contract with the company, with the only functional difference being that they proposed the blackmail, not me.
Are you saying that NDA is non-binding, even though I took the money?
> As the main effect of anti-blackmail laws is to allow rich celebrities to more easily evade norms and laws, my best explanation for such laws is a widespread desire to give them what they want
Or is it about legislators wanting these laws (eg to protect themselves from their own misbehaviour)? So they passed them without real democratic mandate, either by bamboozling voters into thinking blackmail is bad, or just going under voters’ radar (eg not campaigning about the issue).
Ie voters wouldn’t/shouldn’t want this legislation, but haven’t thought hard enough about it.
Incidentally AFAIK in France revealing politicians’/celebrities’ lawful but immoral behaviour (without blackmail), eg marital affairs exposed by the press, is treated as a breach of their confidentiality and hence is illegal.
Also incidentally, I’ve heard that current case law in the UK means that NDAs covering up such lawful wrongdoing are now unenforceable. (Though that doesn’t stop celebrities and organisations trying to get people to sign aggressively-worded ones.)
legislators count as rich celebrities.
I'm not sure this is a matter of rich & powerful versus poor & powerless.
US law is even funnier than average, but if it's about a crime, I'm not sure an NDA is valid.
A core aspect is that separately, it's legal for Cheater to cheat on Spouse, it's legal for Observer to tell Spouse, it's legal for Cheater to give money to Observer, but taken together, it's blackmail and illegal.
Blackmail isn't always to suppress crime info.
I don't think anything you said rejects the post. The law clearly favors blackmail in the direction of the powerful. It is true that US law is screwed up in a general sense, but this does not change the point being made.
NDA itself is broad. Can be used to protect reputation like this post implies, or just to protect info that gives a temporary competitive advantage. The former can be seen as legal blackmail, while the latter is a weird enforcement of intellectual property.
"The law clearly favors blackmail in the direction of the powerful."
The powerful have obviously, by definition, more power, but on top of that, what do you (both Robin Hanson and Phil) refer to? This is an informative question, not challenging.
If you're rich and powerful, you can both react better to blackmail, by easier paying, through preventive NDAs, through law-firm power and expensive proceedings, and you can more easily blackmail, through better possiblities to have things published, and again better law-firm power. You're also a more interesting victim maybe, in that you can pay more and damage to your reputation can lose more, though that latter had better be seen in relative terms as well.
And then there's sometimes the idea in libel law that a "public" person has to live with less privacy and more scrutiny.
I just wanted to add another Phil to the comment thread.
See you both at Philcon? <philcon.org>
"Why com'st thou?“
"To tell thee thou shalt see me at Philippi."
You often hear an opinion that NDAs protecting trade secrets are just fine, but NDAs to keep quiet about criminal conduct by the persons former employer are bad.
There’s already some restrictions on this, like contracts to commit crimes aren’t enforceable and (I think) a contract can’t require you to lie when questioned under oath.
But still, there’s a sentiment that NDAs to keep quiet about your employers misconduct out to be banned/unenforceable for the same public policy reasons that contracts to commit crimes aren’t enforceable.
I'm thinking of the term "false equivalency", such as saying, "It has four legs, so it is a table."
We often try to analyze in a way that will focus on a limited list of aspects in the comparisons used to represent the relationship between two things. This can be more easily noticed and discussed, even where a disagreement will also be maintained by two minds. However, if there is a third object in relation to this process, the complexity becomes much more difficult to list out such that everyone grasps the same what the factors of the contention identify.
In this context, referring to a "Non-Disclosure Agreement" as compared to a notice of "Blackmail" the additional factors center around how law will use the reasoning recorded in courts in history for reference on the meaning of terms in a written contract such as a "Non-Disclosure Agreement" which is meant to protect the investor banking finance around a new dramatic fiction story, TV show, Theater production, or movie, so that it is not in some part a content someone else enjoyed positive sales of the sensation of surprise in the audience entertainment experience, before the full original production could be completed and offered to the same otherwise considered as "open" market place.
The novelty is why the new book may be referred to as a "novel" in the first place. If someone else undercuts disclosure of the story meaning content in a faster production they were able to create and package and sell ahead of your formal company, then you will realize the financial loss because they exploited the novelty of your invention to the public interests seeking entertainment stimulation, and now your original is not received as the first or the actual original because in the course of their social experience they saw part of it already from someone else they don't know stole the story meanings out of access to your original works.
So will simply say, the early bird gets the worm. But that is why it takes a society like that around the court of Queen Victoria for someone like William Shakespeare to have the chance to create historically received theatre performances and publications at the Globe Theatre in London. If a cheap Paris paperback publishing house can sell a simpler fiction story ahead of the opening night of the play, much fewer are enticed to pay for tickets, and less sensation about the novelty offered by this writer will be of any profit to the industry of that work.
You see, the third object in this relational process is the reason that reducing the debate as if there are only two sides, like objects in motion in social-economics relative only to each other, makes the explanation less useful to the social reality of the actual history in this question. There is no legal reason history of reference that would be in a statutory law record in a court about the justification for "blackmail" by comparison, because it is indeed a two-sided process in purpose. It is not seeking to retain conditions in engagement of the wider economic infrastructure for the purpose of better reassurance to investors that the end result in the business venture will be of sufficient value across the domain of the market, as there is no consideration of impact upon the market.
In this specific respect, it is looking like the logical fallacy of a "false equivalency" to compare the NDA as a legal history of a business marketplace investment protective practice, like it violates some "Libertine" ideal of totally open laze fairs wildly open and without rules kind of money transaction system lacking any financial record accounting for what was paid in, compared to the venture to achieve what may be paid back out in the later result that defines the purpose of the venture. In this respect, most in social economics will not see an NDA like it were a kind of "Blackmail" because with that you would never have both sides experience a solicitation to the process as an option meaning to protect the third object in this relational system, which is the moment for the first time, that the content produced carefully in art will become the sensational discovery and surprise before the ticket sales to that production experience in hopes of a sense of reward both to the ventures, and to the public economic domains of the marketplace. Blackmail is an ambush contract with no established legal reasoning history sanctioned in any court of law, to be any kind of statute by any means, validating it as a non-toxic process upon the sustainable social dynamics of the marketplace. It is two-dimensional, with one winner and one loser, and no regard for the economic impact of unsustainable money meanings found in theft.
So, as a published scriptwriter, author, and recovering patent owner who's patent claim only exists won 26 years after original disclosure documents, is because of the date of copyrights on original writings also published, my contention is those who simply engage in "libertine" tactics to take whatever they feel they should even making threat of blackmail to shut up the complaint of the artists or engineer who made that first example no one respected at that time, then failure to permit consideration, as it shows in the marketplace history only undercuts the idea if you work hard, and provide your works for use and benefit, then the community will replay you. So then, work hard, and you will get ahead. This is why NDA's protect the works of creators. It is not blackmail. To equate it as such takes away established legal history reasoning records meant to protect the rights of the originating researching and crafting artist/inventor in a lawfully practising economy. That would be a conventional argument in the Author's Guild or the Writer's Guild, based on what I have seen being a member of both.
Very interesting observation, Robin. I'd never thought of that.
“we allow exactly the same transition”. Do you mean to write “transaction” here?
yes; fixed.