One Way To Settle The TechCrunch-Fueled Dispute Over Embargoes

Warning: This is an inside-baseball post about tech bloggo-journalism. In all likelihood, if you're not a tech journalist or blogger, you'll wonder where people get the time to contemplate things so trivial.As a matter of new policy, in a post titled "Death to the Embargo," TechCrunch editor Michael Arrington has vowed to violate the NDAs that TechCrunch agrees to:

His controversial post on the matter has become a major meme in the blogosphere and Twitter-verse (-spheres? -verses? Imagine telling this to some man on the street?).

For as long as I can remember, the companies and people who make technology have asked journalists and eventually bloggers to sign nondisclosure agreements (aka "NDAs," aka "embargoes") in order to get early access to information that said innovators were not yet prepared to release to the public. The main instrument of an NDA is the embargo date and time. When you sign an NDA, you promise not to release any information about the NDA'd product, service, and/or announcement until that date and time or until you are otherwise released to do so by the party asking you to sign it.

When I was the director of PC Week's Labs back in the '90s, NDAs came in really handy because once we signed them, we were given much earlier access to hardware and software for testing purposes than we otherwise might have had. By having that early access, we were able to put hardware and software (there were almost no services back then) through enough paces that we could, with confidence, release an accurate assessment when the embargo date cleared. We saw this as a win-win-win.

It was a win for the readers of PC Week, who not only saw very timely news surrounding a brand-new product, but also an in-depth review to help them decide if they needed to take action. It was a win for PC Week because, as a weekly, there was a need for speed and timeliness and there were few things more damaging to our brand than being scooped by a competing publication (especially monthly magazines that had an even more dire need for NDAs). It was a win for the vendors of the products because, given more time, we were able to thoroughly test the products and communicate with the vendor about any problems (to make sure it wasn't user error). The result was a more accurate review, which ultimately favors everyone but especially vendors who always worry about unfair treatment.

The competition to be first on reviews became so fierce that PR outfits like Waggener-Edstrom (represents most of Microsoft) started using NDAs to guarantee that Microsoft treated all publications equally and fairly in terms of access to products. All publications were asked to agree to the same NDA and abide by the same embargo date. Today, the date includes a time as well, thanks to the Web.

I and many other tech journo-bloggers from that era already have experienced the same anger Arrington is expressing. You sign an NDA knowing your competition is signing the same NDA and and everyone is promising to play by the same rules. But then, one of your competitors breaks the rules, publishes a story early, and makes you look like a laggard. Even worse, you sign more NDAs and keep playing by the rules, but you keep getting burned. As the WSJ's Kara Swisher notes, many NDAs are broken by mistake. But if there's one thing we can all probably agree on, it's that NDA-breakers never seem to be held reasonably accountable for their actions. Confronted with the same situation many times in my career, I've often asked myself why I should even bother abiding by any NDA I sign.

Well, for one, it's my word. As much as it's about anything, this industry is about relationships. Even if some legal eagle isn't going to pound your door down with a lawsuit asserting breach of contract, there's still that part of the industry that works off of those relationships and trust.

I have and will continue to agree to NDAs. After nearly 20 years of tech journalism and signing NDAs, I'm not even asked to sign them anymore. It's always verbal or a handshake and I still haven't broken one that I know of.

The Web is already rife with analyses of every word in Arrington's post. Did he really mean what he said? Is it something more sinister? Blah blah blah. Arrington is right about at least one thing. The PR firms (and pros) are out of control so long as they're not holding people accountable for violating NDAs. As soon as that starts to happen in a very public and transparent fashion (and en masse), people will start toeing the line and my money says that Mike Arrington will, at that point, be happy to agree to some embargoes again.