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The Trump administration is planning a government-wide nondisclosure agreement that would bar federal workers from sharing a wide array of "confidential government information," according to a draft notice posted to the Federal Register on Tuesday by the U.S. Office of Personnel Management.
The draft notice, which will be published Wednesday and stay open for a 30-day public comment period, uses an expansive definition of privileged information, beyond typical classified and unclassified designations. Under the terms of the draft, employees would be blocked from sharing "non-public, confidential, or proprietary information" or "any sensitive, pre-decisional or deliberative material that is not currently publicly available and should not be disclosed under applicable law."
Agencies can decide whether to adopt the NDA, according to the draft.
In the draft notice, OPM cited a number of high-profile leaks, including "unauthorized disclosures" that it said were made to the New York Times and The Washington Post about the U.S. raid in Venezuela in January that led to the capture of President Nicolás Maduro. The notice said the leaks "put the lives of members of the armed forces at risk, leading news organizations to delay 'publishing what they knew to avoid endangering U.S. troops.'"
New York Times Executive Editor Joe Kahn previously disputed that the publication had sensitive information about the mission that required it to delay its story. "Contrary to some claims, however, The Times did not have verified details about the pending operation to capture Maduro or a story prepared, nor did we withhold publication at the request of the Trump administration," Kahn said in a January explainer on the Times's website.
Spokespeople for the Times and The Post declined to comment.
"In much of the private sector, employees handling sensitive business or customer information are routinely required to sign confidentiality agreements, and the federal government should not be held to a lower standard," OPM Director Scott Kupor said in a statement.
The draft NDA says that signing it is "voluntary," but there's a hefty caveat: "Failure to sign may result in removal from federal service and potential debarment for refusal to certify compliance with applicable non-disclosure obligations."
Before his presidency, Donald Trump for decades relied on NDAs as a weapon against criticism. Signatories include ex-wives, contestants in the reality TV show "The Apprentice" and even campaign staffers. Since he took office, his administration has used nondisclosure agreements to keep a close hold on certain government information.
In the first Trump administration, the Justice Department brought, but eventually dropped, a lawsuit against a former senior aide to Melania Trump who, it initially claimed, violated an NDA when she wrote a tell-all book about the first lady.
In Trump's second term, the Defense Department imposed NDAs and random polygraph testing last year as part of a broader effort to deter leaks, and, critics claimed, root out those deemed insufficiently loyal. The Department of Veterans Affairs also required officials working on layoff plans last year to sign NDAs, keeping much of its workforce in the dark about the mass firing plans, which were later canceled.
There are legal limitations to the use of NDAs in government. Under a federal law that protects whistleblowers, these agreements cannot limit a civil servant's ability to expose waste, fraud and abuse. The proposal includes a carve-out for whistleblower protections and other laws permitting disclosures.
The proposed rule would not apply to federal contractors, even though they have been responsible for several notable leaks, including public disclosure of tax records of wealthy Americans - including Trump - noted Don Kettl, professor emeritus and former dean of the University of Maryland School of Public Policy.
"There's so much work done by contractors that a one-sided NDA might not accomplish much," Kettl said.
Esha Bhandari, director of the American Civil Liberties Union's Speech, Privacy and Technology Project, said the government cannot "muzzle" government workers with NDAs, which would be a violation of the First Amendment.
"Such broad gag orders would leave the public in the dark about how the government works, preventing the kind of informed debate that is critical to democratic accountability," Bhandari said. "The government can't shroud itself in secrecy in a democracy."
While private employers have long used NDAs to discourage employees from disclosing business secrets, government efforts to use NDAs raise a distinct constitutional concern: the First Amendment's guarantee of free speech.
Greg Greubel, senior attorney at the Foundation for Individual Rights and Expression, said that government agencies should protect confidential material, including classified information, personnel records and sensitive law enforcement records.
"But they cannot use an NDA as a broad gag order to stop employees from speaking about misconduct, workplace concerns, or matters of public concern," he said. "That would be a major First Amendment issue … the public has a strong interest in knowing how government works."
Jessica Levinson, a professor at Loyola Law School, said the nondisclosure agreement would need to be written in a way that narrowly defines what would be restricted in order not to overly limit speech, which remains protected under the First Amendment and other laws. For instance, restricting an employee's compliance with a congressional subpoena would probably be challenged, as would limitations on civil servants expressing their personal beliefs on their own time.
"It can't be used as a catchall gag order for all employees," Levinson said.
Greubel said that the NDA proposal is written to ensure that employees comply with existing laws "governing the disclosure of confidential government information. However, even if the NDA does not impose new restrictions on its face, it could still chill protected speech if employees are led to believe they cannot discuss anything related to their work."
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