In Defense of Confidentiality
by RENEE P.[1] and SARAH CALLAHAN
Introduction
The Red Star Caucus recently published an essay, Against the NPC Confidentiality Agreement Packet, defending the refusal by a minority of NPC members to sign the Good Governance Agreements adopted by prior NPCs, while demanding that “all [NPC] members must be shared on all documents regardless of if those members have signed an NDA.”
There are two arguments made in their piece. The first, that the confidentiality agreement is unenforceable and unnecessary,[2] is what the piece focuses on attempting to substantiate. But the second and much more consequential argument is that in the absence of strict legal necessity, DSA's national leaders should not be required to make any written commitments to organizational confidentiality. We believe that even if there were significant legal questions about DSA’s ability to restrict confidential information behind a signed commitment, the necessity of making that commitment anyway is the core political question here, and deserves far more focus than it has been given.
Instead of giving serious treatment to this political question, the Red Star piece is constructed primarily around a flawed legal argument that the nondisclosure agreement is both unenforceable and unnecessary, citing cases that simply don’t support their argument. The first case cited is about whether a court should impose a confidentiality agreement on a director as a condition of exercising his statutory rights to inspect certain documents, not whether a corporation can enforce a confidentiality agreement between it and its directors.[3] The second involves a noncompete agreement with a former employee that included some terms related to confidentiality, not a limited confidentiality agreement with a board member.[4] The third authority cited, a Vice article describing this memo issued by NLRB General Counsel Jennifer Abruzzo, also doesn’t involve a board’s confidentiality agreement; instead, it involves nondisparagement agreements with former employees, and is only relevant to employees because it involves union rights.[5] None of these are useful in assessing DSA’s confidentiality policy.
We don’t outline these issues with the legal arguments in Red Star’s piece for the purpose of making our own legal argument that every clause in the confidentiality agreement is perfect and the agreement is absolutely necessary; we instead do so to point out that the NPC ought to consult its existing qualified corporate lawyers about these issues. DSA is subject to the jurisdiction of a dizzying number of local, state, and federal agencies with investigative and prosecutorial power, all of which are in the control of the ruling class, and a significant tranche of which are in the control of the right wing. The law may be a bourgeois construct, but that construct packs quite a punch. We should not be cavalier about legal compliance.
The rest of this piece will make the case that, legal questions aside, it's crucial for the success and defense of our socialist movement that leaders are dead serious about organizational confidentiality—and that they reconsider before politically agitating to be exempted from it.
**What’s So Confidential, Anyway?**
DSA is the largest and most powerful socialist organization in America in a hundred years. The bitter truth is that we not only have to prepare ourselves for infiltration or sabotage by our enemies, including state actors—we have to govern DSA with an understanding that that infiltration is already underway. In 2018, conservative media company Project Veritas sent a stream of operatives to infiltrate Metro DC DSA, in order to steal and publish information on the chapter and its members. In 2022, Colorado Springs DSA discovered and documented a long-term infiltration attempt by the Colorado Springs Police Department, where an officer using a false identity integrated herself into chapter social spaces and committees. She used that access to stoke factional conflicts, sow distrust towards leaders by labeling them insufficiently radical, and obtain membership records. Later that same year, an outspoken critic of DSA in Los Angeles claimed to have possession of leaked DSA-LA membership rolls and threatened to release them publicly.
One of the unfortunate side effects of being the nation’s largest socialist organization is that DSA’s member rolls are a list of, if not every socialist in America, close enough to it for anyone seeking to target our members. During the Civil Rights movement, southern states like Alabama initiated legal action to seize the membership lists of the NAACP in order to target and intimidate its members. This effort went all the way to the Supreme Court, which ruled in NAACP v. Alabama 357 US 449 (1958) that prior disclosures of the “identity of [the NAACP’s] rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility,” and that compelling them to turn over member data would be a breach of members’ First Amendment right to free association. We can’t protect our confidential information against state action through a private NDA, but we can increase its safety against other bad actors.
In the case of Los Angeles’s membership rolls, DSA leaders looked into whether they could get an injunction (an order from a court to do or not to do something) to prevent this public release and protect chapter members’ confidentiality. DSA-LA’s confidentiality agreement did not have language in it describing the release of membership data as “irreparable harm,” which is the legal term for the harm you have to demonstrate to get injunctive relief. At least one legal expert suggested that it would be significantly more difficult to get an injunction to prevent the release without that language. One clause of the NPC’s confidentiality agreement provides, “I acknowledge that a breach of this Agreement may cause irreparable harm to DSA and/or its members for which there is no adequate remedy at law, and which shall entitle DSA to immediately seek injunctive relief to prevent any breach or threatened breach by me.” It’s true, as the Red Star piece notes, that as board members, NPC members have a fiduciary duty to act in the best interests of the organization, which has generally been held to protect against the disclosure of certain kinds of confidential information. But the confidentiality agreement creates stronger and clearer legal protections for DSA’s private documents and data than that baseline fiduciary duty. Why wouldn’t we want greater protections for the information that the NPC votes to treat as confidential?
With membership data, the risks of leaks are obvious. McCarthyism is alive and well in much of America, and being outed as a socialist can place someone’s job, familial connections, and other forms of safety at risk—not to mention the danger their address being public can create. For our significant numbers of transgender DSA members, the organization may well be the only place they use their chosen name, and being outed can create even greater employment and familial risks. But there are other kinds of information that need protecting too, like personnel files and grievance documents. For those worried about too much information being treated as confidential, in the existing agreement, it’s the NPC that’s the final arbiter of what is designated as confidential: the answer to wanting more transparency is to make public those documents that can and should be made public, not abandoning legal protections for those documents that should be protected as confidential.
**Trust, But Verify**
Members of the NPC opposed to continuing to enforce the confidentiality policy have stated that it’s unnecessary because of the trust we have in our DSA comrades. But many people in DSA are routinely asked to sign similar confidentiality agreements. In order to get access to member data to send California Red, the newsletter of CA DSA, its editors were asked to sign an NDA. Members of national committees that have access to sensitive data are asked to sign an NDA. Members of chapters who are given access to member data are routinely asked to sign an NDA. Past NPCs enacted and reenacted a confidentiality policy not because they didn’t trust their fellow NPC members or DSA members in general to keep sensitive information confidential; they enacted it because the potential harm, if our trust is misplaced, is so large. Indeed, one current NPC member who has raised concerns about the confidentiality agreement posted earlier this year that their “biggest concern about a hypothetical dsa illegal period is getting the right wing of the org away from member data before they can turn us all in.” As recently as the past few weeks, DSA member, labor reporter, and UAW Communications Director Jonah Furman was a victim of a leak of private organizational information. His group chat messages detailing the UAW’s Stand-Up Strike strategy were fed to the press and the Big 3 automakers. These messages were sent in a closed group Twitter DM, no doubt composed of people he believed he could trust. While no internal DSA policy or external law can prevent motivated actors from attempting infiltration or sabotage, what we can do is maintain a strong internal security culture that takes maximum advantage of any legal protections we have access to, and socially obligates leaders to opt into those protections.
Trust is fundamental to a strong and healthy organized movement, and we want to be crystal clear that detailing past examples of breaches are not an accusation of ill intent against any DSA leader. Nothing works without base-level trust. But as the sacred axiom of security culture goes, we need to trust but verify. Even if we know that every NPC leader fully intends to protect the membership’s confidential information, we must verify it by voluntarily agreeing to organizational and legal obstacles to violating that trust. The NPC has a legal obligation to act in the best interests of DSA the organization, one we feel would be best served by consulting with our attorneys about any changes NPC members are interested in making to the confidentiality policy before making them, and following best nonprofit governance practices in maintaining a confidentiality policy. But we think the more important obligation is as political leaders, to give members confidence that the leaders of the American socialist movement take deadly seriously their obligation to protect it.
**What Does the NPC Confidentiality Agreement Actually Say?**
DSA’s current confidentiality agreement is not perfect, and there are portions that it could very well make sense to change. Indeed, when first asked to sign a version of this document in 2018 as part of her NEC service, Renée (one of the authors of this piece) pushed back on part of the agreement: at that time, the agreement stated that all information that a signatory learned via their participation in national DSA work was by default confidential. She asked that it be changed so that information was nonconfidential by default, and only information that was designated as confidential be covered by the agreement. While we’ve written this piece to defend the value of confidentiality, there is absolutely a countervailing value of being transparent with information that doesn’t need to be protected, one we take equally seriously.
The current version of the agreement is fairly straightforward: it recites that NPC members are responsible for the health, welfare, and ongoing work of the organization, and that NPC members will as a result of their roles have access to confidential information. It says that the Steering Committee will formally designate any confidential information as confidential and that it’ll be identified as such through a stamp or similar identifying mark, and lists personnel information, financial information, and grievance information as sample categories of information that might be designated confidential, although it doesn’t limit what can be designated. NPC members then affirm they won’t disclose confidential information, except (1) as necessary in the course of their NPC duties or (2) as authorized by the Steering Committee—that is, the SC has the power to approve any particular disclosure of confidential information by an NPC member. There’s then a stray paragraph that relates to the conflict of interest policy—one of the things that makes the agreement imperfect, but there’s nothing wrong with the text, it just seems like it belongs in the conflict of interest policy. The agreement then provides that in the event of a breach, the NPC member won’t have access to any confidential information going forward. It’s unclear whether this term makes sense in light of the rights and duties of members of the board of directors, but again, that’s a reason to consult with our attorneys, not jettison the whole policy. The next paragraph provides that the NPC can essentially declassify documents by rescinding “confidential” designations, the one after that provides for the injunctive relief described above, and the final paragraph is legalese saying the most recent NDA you signed controls, and any previous ones you signed no longer have any effect.
Renée signed the current version of the confidentiality agreement, not because she doesn’t think it could be improved upon, but because she believes as a fiduciary of the organization, she is obligated to put the organization’s interests first, and DSA is better off having NPC members bound to an imperfect but basically okay confidentiality agreement than no agreement at all.[6] When she was asked to sign a truly bad agreement in 2018, she raised her issue with it and DSA’s lawyers were consulted and the confidentiality agreement was revised and she signed it. If other NPC members believe there’s something truly bad in this version, that’s their prerogative, but the answer to those concerns is to revise that agreement in consultation with DSA’s attorneys, not to torch the whole policy.
Today, the Steering Committee has on its agenda a proposal that would essentially render the confidentiality policy—which was adopted by the full NPC in the past—a dead letter, by releasing confidential information from prior NPC terms to current NPC members who have not signed the confidentiality agreement. Renée has submitted an amendment to the proposal that would segregate out the confidential information and release it only after the NPC has consulted with its attorneys and determined how to proceed. We implore the NPC to take confidentiality seriously, both as legal fiduciaries of a nonprofit organization that would be best served by a confidentiality policy, and as stewards of a movement that is always under siege.
[1.] Although Renée is a lawyer, she isn’t DSA’s lawyer, and nothing in this blog post constitutes or is intended to constitute legal advice.
[2.] To the contrary, it is a widely accepted best practice in corporate governance to adopt good governance policies, including confidentiality agreements. “Boards should ensure that their companies have formal written policies designed to promote compliance with law and corporate policy.” American Bar Association, Corporate Director's Guidebook at 36 (6th ed. 2011). “Public company boards should consider implementing a confidentiality policy specific to directors.” (David A. Katz, Boardroom Confidentiality Under Focus, Harvard Law School Forum on Corporate Governance (Jan. 23, 2014).) BoardSource, a national nonprofit that provides guidance and training for nonprofit boards, echoes this advice: “Confidentiality policies are important to an organization’s credibility and reputation.”
[3.] As has been [pointed out on the forums](https://discussion.dsausa.org/t/against-the-npc-confidentiality-agreement-packet/27219/2), this case is from Delaware, not the District of Columbia, where DSA is incorporated, but there are very few published decisions from the DC courts involving nondisclosure agreements, so looking to another state’s law isn’t unreasonable–as long as the decision you’re looking at is on point, which this one isn’t.
[4.] *Hospitality Staffing Solutions, LLC v. Reyes*, 736 F. Supp. 2d 192, 198 (D.D.C. 2010). The bolded language quoted in the Red Star article, which refers to “confidentiality agreement[s],” is not in fact language from the court’s decision, but instead from a LexisNexis Practical Guidance summary of DC law on restrictive covenants written by a practitioner. “[Restrictive covenants](https://www.americanbar.org/groups/litigation/committees/commercial-business/practice/2019/restrictive-covenants-employment-related-contracts/)" in the employment context are contracts that make it unduly difficult for an employee to find new work after they leave their employer, including noncompete agreements, nonsolicitation agreements, and the like. They’re legally disfavored and it is indeed very hard to enforce them in court, and some confidentiality agreements can be so broad and so punitive that they qualify. But DSA’s confidentiality agreement, which won’t meaningfully restrict NPC members’ ability to work after their board terms are up, simply doesn’t approach being a restrictive covenant, and thus *Hospitality Staffing* isn’t on point either.
[5.] The rule of law outlined in the memo is that an employer can’t enforce a severance agreement with a former employee that would restrict their statutory rights under the NLRA to discuss their working conditions. The primary target of the memo was non-disparagement agreements; the non-disparagement agreements at issue also had a confidentiality clause that prohibited employees from disclosing the very existence of the non-disparagement agreement. As anyone who has been on Twitter over the last six years might not be surprised to learn, DSA’s standard confidentiality agreement does not include a non-disparagement clause.
[6.] She could be wrong about it being basically okay! She doesn’t practice corporate law, which is why she thinks the NPC should talk to DSA’s corporate lawyers about the agreement.