Posted by: patenttranslator | December 27, 2014

We Reserve the Right to Scan Your Computer and Carry Out Onsite Checks of Translators


 
“We reserve the right to scan your computer to validate that Anti-Virus software is installed and configured correctly and has an up-to-date virus database installed“…. “We reserve the right to carry out an onsite check of your information technology systems, physical and information security processes and measures to ensure best practice and compliance with clauses 6.15 and 6.16 up to twice a year throughout the duration of this agreement upon reasonable prior written notice, except in case of an emergency”.

According to a recent discussion of translators on LinkedIn, the text above is contained in a Non-Disclosure Agreement (NDA) that a translation agency based in Great Britain (thebigword) is sending to “freelance translators” who might be interested in working for this particular agency.

Why would a translation agency want to do something as intrusive and demeaning, as well as clearly illegal, to freelance translators who are otherwise treated as independent business owners who must supply their own skills, equipment and workplace, usually their own home, as well as to pay their taxes on their own?

The real reason for this clause is obviously not “to validate” proper installation of virus software. Apart from the fact that “validation” is the wrong term here because this is something that only the software company that sold software to a customer can do, given that such a large agency works with hundreds if not thousands of people that translation agencies refer to as “vendors”, the “validation” would simply be too time-consuming.

The real reason for the clause must be something else.

So what could be the real reason for including such an implausible clause in a contract? I can think of several reasons for trying to claim the right to do something as brazenly arrogant and as obviously illegal as spying on the content of other people’s hard disks.

1. The owner of the translation agency is coming up with rules like this because he is insane

I mean clinically insane, based on objective criteria used in institutions providing psychiatric treatment. That would pretty much explain everything. The owner of the agency and/or the people who would put such a clause in an agreement simply want to rule the world and nobody and nothing will stop them from trying to accomplish just that. It is quite possible that they are (or believe they are) direct descendants of Genghis Khan and the urge to rule the world is so strongly encoded in their genetic makeup that they could not really resist this overwhelming urge they have even if they tried to resist the powerful urge (so it it’s easier to just give in to it).

2. The agency wants to know all your secrets, such as who your other clients might be

If you give somebody who is in the same business as you are the right to spy on you through your hard disk, they will most likely try to find on your hard disk information that will be beneficial to their business, such as who are your other clients, how much they pay you under what payment terms, what kind of translations you do for them, etc. A lot of strategically important information could be gleaned from this kind of spying on translators by a translation agency.

This would then mean that the people who came up with this rule are not really insane, at least not clinically speaking, only willing to engage in activities that would be clearly illegal in most countries on the basis of a number of laws. Here in the United States, for example, such spying would clash with freedom of speech (because you have none if other people can spy on what is on your hard disk in your own home), or protection of competitive marketplace through antitrust laws. It also means that by including this scandalous clause in a contract, a translation agency is attempting to induce a translator (independent business owner) who signs such an agreement to violate his or her other Non-Disclosure Agreements with other clients.

3. The agency is only interested in semi-slave labor or indentured servants

If you have the right to spy on the content of other people’s hard disks, this will give you such a wide range of control over these people that they could be easily described as slaves or indentured servants whose first duty is to be obedient, compliant and submissive to their masters. This kind of semi-slave labor would be very advantageous to a translation agency because the agency could obviously dictate lower and lower rates and more stringent working conditions that would have to be gratefully accepted by its laborers.

How do you say no to somebody who may have so much possibly compromising information on everything that you have on your own computer, such as which sites you visit and who your friends are, including possibly even how much money is in your banking account? Such a completely defenseless person could be very easily intimidated into accepting even more miserable rates and working conditions.

“The right to carry out an onsite check of your information technology systems, physical and information security processes and measures to ensure best practice and compliance with clauses 6.15 and 6.16 up to twice a year” also seems to be perfectly consistent with the concept that a translator who works for this translation agency is considered to be basically a slave or an indentured servant rather than an independent business owner who is free to sell his or her skills and experience to multiple buyers in a well functioning market system.

If they have the right to come to your home (and they don’t even have to let you know that they are coming “in case of an emergency” …. what kind of an emergency?), what right do they not have?

Ius primae noctis, (also referred to as droit du seigneur, which was the right of the lord to the marriage bed on the first night of a serf’s marriage), is the only right that I have not seen yet mentioned in the online discussions among “freelance translators”.

As the year 2014 is drawing to an end, I will be following with interest new clauses that some translation agencies of the totalitarian persuasion will start including in their contracts with “freelance translators” in the year 2015.

The good old Ius primae noctis seems like a good candidate for Clause 6.17.

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Responses

  1. Steve, if you’ll recall, droit du seigneur was indeed one of those points discussed with regard to thepigturd in a post earlier this year where you left a comment and a certain infamous online assassin declared such asymmetric agreements as this to be perfectly proper.

    Somewhere on my hard drive I have a copy of that monstrosity. I recall it being over 6,000 words long and riddled with so much objectionable nonsense that I think it fair to question the mental capacity of anyone who signs it. As for the mental capacity of the drafters and perpetrators of that contract, I’m sure there are a number of appropriate diagnoses to be found in current and past editions of the DSM.

    Like

  2. Hi Kevin:

    Thanks for your comment.

    I completely forgot about it and I am glad that you linked it here.

    As far as Kevin Hendzel is concerned, based on his interpretation of the First Amendment, Congress may not make any law infringing upon free speech, but people have no right to free speech and we all, or at least those of us who have pockets deep enough to pay for a lawyer, have the right to suppress free speech of others by making them sign a piece of paper.

    An interesting construct.

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    • Well, that’s not my position at all, nor has it ever been (I reproduce my original response at the bottom of this post, from which it’s pretty clear from the final paragraph that I’m criticizing the practice of blocking discussions of punitive contracts, not endorsing them, something I’ve done in public for long before the subject blog quoting it ever existed).

      My key point was a terminological one, anyway — that “freedom of speech” was simply the wrong term to apply to issues of contract law, as the proscription is on what the US Congress is permitted to do.

      As you know, we translators need to be mindful of our terminology.

      There are also legitimate cases where contracts that mandate non-disclosure or what might be considered extreme restrictions are considered reasonable.

      This does NOT apply to lopsided punitive and unreasonable translator contracts, a practice I’ve publicly criticized since at least 1988, and most recently reiterated at an NCATA presentation I gave in Washington DC last year.

      There’s value in recognizing that in contract law, nobody is “forcing” you to sign any agreement, anyway.

      It surely doesn’t require an “expensive lawyer” to cross out objectionable provisions in these contracts and write in your own. All contracts are just offers until the point they are executed by all parties, and the better translation companies expect that you will counter with YOUR offer. This is what we did at ASET when I owned the company for 18 years.

      The companies that won’t even consider your proposed revisions are best avoided, anyway.

      Finally, those agreements that are so lopsided as to be unreasonable are commonly difficult to enforce in court because in practice they lack due consideration — meaning even including a clause that states that the parties agrees that the contract is reasonable and encompasses due consideration will not hold up because it’s the body of the contract itself that’s subject to interpretation.

      ___

      [Original post begins here — keep in mind that this comment was posted in response to Steve’s immediately preceding comment quoting “freedom of speech” as the mechanism at work.]

      This one is always misunderstood.

      The proscription on abridging freedom of speech applies to the U.S. government and its constraint on speech. That’s why it starts out with the words, “Congress shall make no law…”

      People, on the other hand, as well as “persons,” which includes corporations, enter into contracts limiting speech all the time. That’s why all those confidentiality clauses are legal, why out-of-court settlements prohibiting the discussion of terms are legal and why you can agree to never speak of certain subjects ever, for the rest of your natural life (divorce and security clearances). 🙂

      Now of course there are matters of contract law that apply, and usually those address issues of due consideration as well as other factors and that’s the reason for that no available remedy clause. I’m not familiar with UK law on this topic, but it doesn’t (appear) to be outside the boundaries of what’s commonly encountered.

      But I do agree that the degree to which any entity attempts to control discussion about them through contract law is reflective of their inability to control or influence or direct those same unfavorable discussions. It’s a sign of weakness. And just like the Streisand effect, the attempt to control bad news actually has the unintended effect of publicizing it — like it is right here!

      Like

  3. Reblogged this on Translator Power and commented:
    Shocking!!!

    Liked by 1 person

  4. Hi, last year an agency I had been working with for years suddently thought it was a good idea to ask me to sign a contract where, among other things, I was committing myself to notify them 30 days in advance of any vacation, be it a day or two weeks. I reminded them that I was a FREElancer, not an employee. That was the end of our long term relationship.

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  5. @Hélène

    If you are not sufficiently obedient, compliant and submissive, they would not be able to use your skills, no matter how good you may be.

    But seriously, some of these people really are crazy (they seem to think that they are entitled to all this power over other people) and it’s better to stay away from them.

    Like

    • I forgot to mention the ***new*** rate they were proposing (imposing might have been a better synonym though). Of course, it was much lower than my usual rate. Less money, more constraints? Why bother? The problem is this: they always find someone willing to accept these conditions. I can only imagine what my accountant would reply if I were to tell him that I will pay him less since he is reusing the data from previous years. He would laugh, I guess.

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  6. Thanks for posting this Steve. Someone posted the same material to the NETA list other day and it has generated some comment.

    I notice that one of thebigword’s clients is the US Department of Homeland Security. Although I think we would see contract clauses like these more often if US intelligence agencies were mandating them, it is perhaps a further sign of our deteriorating personal privacy rights that this sort of wholesale intrusive collection of data is even being contemplated. It would be interesting to know what sorts of data (or “metadata”) are being collected, but once a company goes down this path, it would be foolish to believe anything they might say about it.

    This puts me in mind of another question that I have had for a while: If someone is using a cloud-based CAT tool (like, say, Across), is it possible for the agency on whose server one is working to monitor the translator’s work and/or other data?

    Does anyone have real knowledge about whether this is theoretically possible? And if so, can they explain how it would work?

    Best,

    Ken

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    • Across is not a Cloud-based CAT, however much a pile of crap it may be. Of course you can monitor the progress of translators with server-based projects, but the extent to which this can be done depends on how the projects are configured.
      People are usually quite mistaken in their assumptions that anything involving servers is equivalent to the so-called “Cloud” or that this is any less secure than their personal machines connected to the Internet for doing research while they work. Often enough you’ll see some of the biggest worriers ignorantly export their entire TM with data for all their clients and send it as an export to “update” the TM of an agency who sent them a three-page translation. Be careful of many of the widespread assumptions about technology in our sector.

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  7. 1. “I notice that one of thebigword’s clients is the US Department of Homeland Security.”

    But why would they be using a a foreign agency? Or is UK now part of US?

    One of the main jobs of the US Department of Homeland Security seems to be creating a lot of insecurity among as many people as possible.

    2. “If someone is using a cloud-based CAT tool (like, say, Across), is it possible for the agency on whose server one is working to monitor the translator’s work and/or other data?”

    I think it is possible, which is why I don’t use cloud storage.

    But there are also many other ways for corporations to spy on our data: for instance when a translator is converting a PDF file to Word through an online converter, or using machine translation, since Google stores all data from MT queries.

    A good post on this subject is here: http://www.josephwojowski.com/transtech-blog/machine-translation-technology-and-internet-security.

    Like

  8. If more proof was needed, the history of Wall Street, particularly the well-documented behaviour of some of its ‘stars’ preceding and following the 2007/2008 crash, psychopathy is clearly no hinder to success (as defined by capitalism, i.e. the accumulation of obscene amounts of money/power). Indeed, it very much looks like a prerequisite.

    However, there is another side to this equation. I imagine that it is the way a psychopath perceives his or her victims that determines his or her approach. As pointed out by Hélène Lemire: “I can only imagine what my accountant would reply if I were to tell him that I will pay him less since he is reusing the data from previous years. He would laugh, I guess”. IOW, it is how she perceives that her accountant will react, that determines what she will or will not do/try to do.

    As long as well-qualified translators continue to act as subordinates (and in its original meaning, a freelancer ‘subordinates’ his lance and life to the will of the warlord for an agreed wage), intermediaries will continue to act as lords/masters. Without push-back, and if recent history is any guide, their behaviour will become increasingly arrogant, greedy and irrational.

    For more on this: http://doubledutchtranslations.com/2013/07/01/to-define-oneself-or-to-be-defined-by-others/

    Like

  9. @Louis

    You have succeeded in convincing me to drop the term “freelance” from the vocabulary that I used to describe my occupation.

    When people asked me “What is it that you do?” I used to reply by saying “I am a freelance translator”.

    I noticed that they look at me differently now when I say instead “I own a small translation business specializing in patents”.

    Like

  10. A long while ago I was approached by an agency, who claimed that in order to work with them one must install their project management software, that on top of the usual project assignments and delivery also takes a screenshot of one’s desktop every 10 minutes (if I recall correctly) and sends them to a server as a way to assure that ones spends the time working or something ridiculous like that.
    So these things have been around for a while now. There are reports in ProZ’s forums and other online fora about similar clauses under the umbrella of security and safety checks (one needs to send the office detailed floor plan to the agency and agree to periodic onsite checks, provide sensitive identification details, etc.
    This only show how clueless these people must be, or how much they don’t even care because their modus operandi is to pass all these stipulations to the translators anyway, while highlighting even more their true role in the (non-)value chain as mere value transparent brokers.

    The funny thing is that they are most likely follow all these confidentiality concerns and stipulations by sending and receiving the actual documents via an non-secured channel, such as unencrypted email.
    Moreover, only those who next to nothing about data protection will think that an anti-virus is a solution against the type of confidentiality threats they are allegedly so concerned about. Today, anti-viruses are almost irrelevant against many of the more serious threats.

    Any series confidential work will be done on the client’s premises (or remotely via a secured connection), and after a due security clearance process, during which the individual will be assessed, and not based on his choice of anti-virus.

    Therefore, this generic clause is a typical bureaucratic nonsense, but just a ridiculous nonetheless.

    I’m inclined to believe that this clause was not added for business espionage purposes, although I don’t rule it out either; not least because it will take too much time and effort, especially if considering that those who are desperate enough to accept this clause, will likely just disclose any and all information upon request anyway if only the agency will ask with an authoritative tone, and an insinuated threat that unless one complies and provides all information as well as grant the agency the right to name their first born as part of an effort to strengthen the company’s brand, one will not get any work from them.

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    • Shai- I have one client that wants us to regularly update our project status on their website accounts as percent completed. I just ignore it as not applicable to the way I work and my assignments, and nobody has cared. I just tell the project manager when to expect the files on the day of delivery so he or she doesn’t panic and tell them to text me if they send a query and they don’t get a quick response to e-mail or don’t see a file when expected so I can resend. I set up the account on their website as requested long ago but have conveniently misplaced my login info anyway.

      These agencies are trying to automate things that don’t need automating. Sometimes you have to remind them that “independent contractor” means “not an employee so stop looking over my shoulder and making more pointless work for me.” Good communication between translator and project manager is needed, though, since messages can get lost in cyberspace.

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      • I agree with you, but personally lost all patience for these kinds of practices. I prefer to work with people with whom I share professional values rather than waste my time and energy on finding my way through nonsense.

        If you try to automate incompetence, all one gets is (in the best case scenario) an automated incompetence. A good system in place could minimize inefficiencies and facilitate people to focus on what really important. No system can substitute even the basic professional competency, skills, and judgement. I also find that these brokers are usually the ones competing on price, and their automation efforts are strictly in an attempt to maintain/increase their margins. They also use them in an attempt to minimize the risk of working with less-than-reliable translators (because their business model and practices don’t really attract professional translators) – hence the time and progress micro-management (also because they are often so clueless that they just try to employ a corporate employment mechanisms and methods where they don’t belong).

        Liked by 1 person

    • “If you try to automate incompetence, all one gets is (in the best case scenario) an automated incompetence.”

      I love that.

      I will probably use it in a post one day (with your permission).

      Like

  11. “I’m inclined to believe that this clause was not added for business espionage purposes, although I don’t rule it out either; not least because it will take too much time and effort”

    In that case, if my suggested possible motive for demanding an explicit permission to spy on translators is unlikely to be business espionage, which was my suggestion listed under number 2, perhaps some combination of my suggestions listed under number 1 (that these people are in serious need of psychiatric treatment at a properly licensed mental health institution), and/or of the one listed under number 3 (that they are only interested in semi-slave labor) could still be properly describing the real reasons for this apparent insanity.

    Unless somebody can think of other reasons, without mentioning something as utterly ridiculous as “validation of the proper installation of antivirus software”, of course.

    Like

    • No, no; all the suggested possibilities are valid, including the one about business espionage. The fact that I don’t think that collecting business information is necessarily the primary motive doesn’t mean I’m correct. Just an opinion.

      Keeping all the suggested possibilities in mind and as the background, I just think that in this particular case this clause is just part of the usual patchwork of the great hotchpotch that is the “contracts” of these unscrupulous brokers. It also tells a great deal about how they do business, what they think of the poor souls working with them (vendors? more like vending machines), and their role in the (non-)value chain.

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    • The “reasons” for invasive clauses like these may be illuminating. But it also seems to me that a historian looking back on these times a hundred or so years from now may well look at the broader picture and see these clauses as part of a general push toward control and centralization by governmental and corporate entities. If the Ed Snowden revelations have taught us anything, it is that intelligence agencies will seek the broadest possible control (e.g., collect data on everyone indiscriminately rather than in a targeted manner). And what are we being taught to get used to? Eventually, once we have come to accept these practices and even identify with them, those data (and the ability to collect them) will undoubtedly be used more intrusively than they are now.

      And a historian may well look at the zeitgeist that was created and how it merged with the corporate drive for control of all corporate processes. Yes, we translators are “independent small business owners.” But let’s get real: we are independent in much the same way that weavers in their cottages were in the 18th and 19th centuries. And although the corporations who use our services enjoy not having to pay us wages plus benefits, they will always seek to maximize their control over us — all the more so because what we translators do is so critically important to their ability to profit in a globalized economy.

      So a historian might simply see these clauses as consistent with the larger movement toward centralized control — and many translator responses as symptomatic of the illusions they came to harbor about their independence. And the agencies and others who inflicted these clauses? It probably ran the gamut: some undoubtedly identified with the drive for control; others may not have understand the implications; some did it because their lawyers told them to.

      Milton Mayer, who wrote “They Thought They Were Free,” talked about the need to “Resist the beginnings” and “Consider the end.” Hard to do when one is living in confusing times when there are no clear signposts. But a historical perspective may help. Mayer’s book is very interesting in that regard.

      Ken

      Like

  12. http://www.proz.com/forum/business_issues/279641-do_translation_agencies_have_the_right_to_scan_translators_computers.html#2380064

    Like

  13. Ha ha ha ha ha ha …. It’s definitely not just thebigword. I’ve had to cross out such things in contracts, sometimes nowadays losing the job. The lawyers have them in their grip. I even ran into one outfit that specifically states you can’t use Google Translate. For anything. Not even a single word, I’m assuming. No big loss for me since it’s not too useful in my work, but still rather controlling and not in the spirit of an independent contractor status. Also stupid in my case since I typically just do background work that is already public knowledge and do know how to make anything else anonymous. People are so worried about confidentiality that they have lost all common sense about the issue, and also confuse translators with uneducated, clueless chipmunks.

    Liked by 1 person

    • As we both know, there are too many uneducated, clueless chipmunks and hamsters mislabeled as translators that the confusion is sometimes understandable. Organizations like thebigword, Lionbridge and TransPerfect are mass incubators for this sort of mentality, but we’ll find it even at the level of small SME direct client these days. Last year I had to ditch one of my oldest client relationships when a new manager brought in the lawyers to impose new “vendor contracts” with insane penalty clauses explicitly requiring no proof before one would be obliged to fork over €10,000 for a “breach”. Screw them, I say. There are a lot of fish in the sea and plenty of mammals out of it who smell a lot better.

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  14. “But it also seems to me that a historian looking back on these times a hundred or so years from now may well look at the broader picture and see these clauses as part of a general push toward control and centralization by governmental and corporate entities”

    There is an incredible hunger for maximum control over the rest of us among certain kind of people who run companies big and small and government “services” and this hunger is reflected also in agreements between suppliers and consumers of services, and I don’t mean just translation services.

    I have often been disgusted by contracts and agreement that I translate from Japanese. They are extremely one-sided, even brutal in the amount of control that the party that apparently has more power wants to usurp over a subcontractor.

    I used to think that this is just another surviving aspect of the Japanese feudalistic traditions that peeks through at me from these contracts. But this year I translated a few Russian contracts that were equally disgusting and feudalistic.

    The disease has spread throughout the entire globe.

    I think that a second storming of the Bastille is coming soon. If it does not, our children will live in a very brutal society not much different from Hitler’s Germany or Mussolini’s Italy.

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  15. “There are a lot of fish in the sea and plenty of mammals out of it who smell a lot better.”

    Agencies that insist on these kinds of contracts are gradually locking themselves into “a workflow system” in which only incompetent people who can’t get work anywhere else are still able and willing to exist.

    But they don’t seem to mind that, possibly because they can’t really tell a competent person from an incompetent one anyway.

    Like

    • I’ve found that innocently ignoring the pleas to sign the contract doesn’t seem to stop quite a few PMs from contacting me for work. Probably they absolutely need the draconian contracts only for certain clients I would refuse work from anyway (I won’t work on military contracts or for neonazis like Homeland Security, for instance). Of course, the PMs might just be desperate with some jobs most others won’t touch. Scads of formulas and equations tend to scare the non-techies off who otherwise mistakenly think that technical work is “easy”. Languages like German and Russian with mathematical symbols inside sentences can be especially baffling when the authors rely on invisible case endings to clarify what they mean rather than prepositions. I have to think rather hard about it myself even with my advanced degrees and coursework in math and physics.

      Like

  16. In the Proz.com thread about this contract, to which you helpfully provided a link, Steve, one young man reported that he actually DID get an on-site inspection while working on translations for another agency. They were sensitive documents for several government agencies, for which he’d been required to get a security clearance, background checks, and fingerprints. He was contacted ahead of time to arrange the visit, which was by some FBI agents in an “unmarked white van.” When I asked him more about it, he downplayed its seriousness, saying they just had a “nice chat,” during which they talked about internet security and the agents remarked how much they “loved” a skull he had in his apartment. I bet they did…

    His conclusion was this: “Especially knowing the agency that is requesting this information, but if they really are working with the DHS, CIS, FBI, or any other federal body, I would bet that the feds are the ones asking for authorization and the agency had to include it in their contract.”

    I believe this explanation goes beyond the three you postulated and makes the most sense of all.

    Like

    • It all comes down to what one is accepting and comfortable with. As a rule-of-thumb I don’t think that I would have accepted any work that requires me to complete a security clearance process through an agency. We are not employees. I can understand employees going through this process as part of their job (and this could serve them later on their career). But through an agency? Not in my right mind. The client can hire me – as a business – just like they hired the agency.

      Also, if such confidential information is involved that a security clearance is needed, I hardly think the documents will be taken outside the client’s premises.

      Liked by 1 person

  17. “I believe this explanation goes beyond the three you postulated and makes the most sense of all.”

    It may be the most like explanation for this kind of unwarranted and probably illegal intrusion into the life of an independent business owner (did they have a search warrant? have they ever heard of the Fourth Amendment?), but that does not mean that it makes sense, TC.

    In fact, it makes no sense at all to me.

    Like

    • “It may be the most like[ly] explanation… but that does not mean that it makes sense.”

      I will certainly grant you that, PT. Few things make sense any more in this Brave New World…

      Sorry, didn’t mean to post anonymously.

      Catherine

      Catherine V. Howard
      TranslationCraft Services

      Like

  18. “Few things make sense any more in this Brave New World…”

    Well, if things get real bad here, and they probably will, we can always move to some safer place and translate from there … for instance the Amazon jungle for you and the Bohemian forest for me.

    I hear the Internet is cheaper and works better there than here.

    Liked by 1 person

  19. […] into these contracts as of last year is an illegal “on-site auditing” clause, namely the right of the translation agency to visit and inspect the premises of the translators, as well as…, ostensibly “to check the proper setting of the security software”. It would be illegal […]

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