The Federal Worker NDA Looks Less Like Security Than Control

A leak is not one thing. A leaked raid plan can get people hurt. A leaked personnel file can expose private lives. A leaked draft rule can also show the public that an agency is quietly preparing to use power in ways it would rather not defend. The Trump administration’s new push for federal worker nondisclosure agreements depends on blurring those cases together, and that is exactly why the proposal should not survive in its current form.

On May 27, 2026, the Office of Personnel Management published a notice seeking comment on a draft “Confidential Government Information Nondisclosure Agreement” for federal agencies to use with both new and existing employees. A nondisclosure agreement, or NDA, is a promise not to share covered information, usually backed by workplace or legal consequences. OPM says its form would simply document employees’ existing duties to protect “non-public, confidential, or proprietary information” obtained through their jobs while preserving lawful disclosures, including whistleblower disclosures. That sounds modest. The text is not. OPM defines “Confidential Government Information” to include, among other things, “internal agency operations,” “personnel matters,” “procurement processes,” and “sensitive, pre-decisional or deliberative material” that is not public and “should not be disclosed under applicable law,” according to the Federal Register notice¹.

My view is straightforward: the government has every right to punish unlawful disclosure of classified, private, procurement-sensitive, or operational information. It already has tools for that. What it does not have is a right to make the whole federal workforce sign a vague, personnel-file warning that treats broad swaths of unclassified internal information as presumptively dangerous to share. The actual proposal is less a security fix than a chill machine.

Start with what is already covered. Classified information is not a vibes category. Under Executive Order 13526, information may be classified when an authorized official determines that unauthorized disclosure could damage national security, and agencies must control classified information to prevent unauthorized access, according to the National Archives’ text of the order⁶. Federal ethics rules already bar employees from using nonpublic information for private gain or allowing its improper use through knowing unauthorized disclosure, as 5 C.F.R. § 2635.703⁵ provides. The Freedom of Information Act already recognizes exemptions for properly classified records, trade secrets, deliberative internal memoranda, personnel and medical files, and law-enforcement records whose release could interfere with proceedings, expose sources, reveal techniques, or endanger physical safety, as 5 U.S.C. § 552⁴ lays out.

That matters because OPM’s best argument is not imaginary. The agency says the template follows recent unauthorized disclosures involving planned immigration enforcement operations, operational details before a U.S. action overseas, and personal information belonging to about 4,500 ICE employees, including frontline personnel, according to OPM’s announcement². Those are not harmless leaks. A serious government needs discipline around raid plans, names, addresses, phone numbers, classified programs, law-enforcement techniques, and protected personal records.

But the existence of real harms does not justify a tool aimed at too much speech. The new category OPM wants to formalize, “Confidential Government Information,” reaches far past secrets in the normal sense. “Pre-decisional” material can mean a draft policy. “Internal agency operations” can mean the machinery of a program. “Personnel matters” can include misconduct disputes. “Procurement processes” can include wasteful contracting. Some of that material deserves protection. Some of it is exactly what inspectors general, Congress, courts, reporters, and the public need to learn when government goes wrong.

An inspector general is an internal watchdog with statutory independence to audit and investigate agency programs. Whistleblower protection means workers cannot be punished for certain disclosures of illegality, gross mismanagement, gross waste, abuse of authority, or a substantial and specific danger to public health or safety. The key word is “certain,” because the channels and rules differ when classified or legally protected information is involved. But Congress did not leave agencies free to write gag orders around those rights. Under 5 U.S.C. § 2302³, officials may not retaliate for protected disclosures, and they may not implement or enforce an NDA that lacks specific language preserving rights related to classified information, communications to Congress, inspector general and Office of Special Counsel reporting, and other whistleblower protections.

The same statute says something else OPM should treat as a red light, not a drafting chore. A federal employee’s “personnel action” includes the “implementation or enforcement of any nondisclosure policy, form, or agreement,” according to 5 U.S.C. § 2302³. In plain English: Congress understood that NDAs themselves can become workplace weapons.

OPM says the agreement would preserve lawful disclosures. I believe that assurance is not enough. The Office of Special Counsel’s own guidance warns agencies that protected disclosures may be made to “anyone, including outside of the agency,” that employees need not follow the chain of command, and that terms like “unauthorized disclosures,” “leak,” and “leakers” can mislead employees into thinking lawful whistleblowing is forbidden, according to an OSC information sheet⁷ and a 2018 OSC memorandum⁸. That warning fits this proposal uncomfortably well. OPM’s notice repeatedly frames the problem as unauthorized disclosure, then asks agencies and the public whether the form clearly explains the scope of covered information, whether signing is voluntary or mandatory, and what agencies should do if current or new employees refuse to sign, according to the Federal Register notice¹.

That last part is the tell I care about. A government form placed in an employee’s Electronic Official Personnel Folder, which follows the worker through federal service, is not a casual reminder. OPM says the form would become part of that official personnel record, and it asks whether the government-wide records system gives sufficient notice that records related to signing or failure to sign would be maintained, according to the Federal Register notice¹. For a civil servant deciding whether to report wrongdoing, the fear is not an abstract Supreme Court question. It is whether a supervisor, security office, or future agency will see a refusal, a disclosure, or a contested interpretation as a career risk.

The First Amendment does not make government employment a free-for-all. Public servants can be bound by duties tied to their jobs, and the Supreme Court upheld enforcement of a CIA secrecy agreement in Snepp v. United States, stressing the government’s compelling interest in protecting intelligence sources, methods, and the confidentiality essential to foreign intelligence work, according to the decision⁹. That is the strongest counterargument: if intelligence agencies can demand secrecy promises, why can’t ordinary agencies ask employees handling sensitive material to acknowledge confidentiality duties?

The answer is scope. Snepp was a CIA case about intelligence confidentiality. OPM is proposing a government-wide template that could reach ordinary civil servants across agencies and cover broad unclassified material. The closer analogy is United States v. National Treasury Employees Union, where the Supreme Court struck down a broad honoraria ban and said the government faces a heavier burden when it imposes a “wholesale deterrent” on a large class of federal employees’ expression, according to the Court’s opinion¹⁰. A prior restraint, in First Amendment terms, is a government limit imposed before speech occurs rather than punishment after unlawful speech. OPM’s NDA may not be a classic licensing scheme, but a broad pre-speech warning backed by job consequences can operate like one.

I would defend a much narrower form. It would list specific statutes and categories, distinguish classified information from merely embarrassing information, name lawful channels, quote the whistleblower carveout in full, say explicitly that employees may disclose unclassified wrongdoing outside the chain of command when the law protects it, and bar discipline unless the government proves the disclosure was actually prohibited by law, executive order, or a valid rule consistent with whistleblower law. That would be training with teeth.

This proposal is different. It asks workers to certify obedience before OPM has settled the most important questions: what exactly is covered, whether signing is mandatory, and what happens if an employee says no. The public should not accept “trust us, whistleblowers are protected” from any administration, especially one trying to clamp down on leaks to journalists.

The next indicator to watch is not whether OPM inserts a generic anti-gag sentence. It almost certainly will. Watch whether the final form narrows “Confidential Government Information” to material whose disclosure is specifically barred by law, executive order, or clearly identified regulation, and whether OPM forbids agencies from treating refusal to sign as a suitability mark against current employees. If those two safeguards are missing, I expect litigation fast, and I think the government will deserve to lose at least part of the case.