Want to learn to make more ethical decisions when it comes to taking cases? Start with a few simple guiding principles.
Last month, I wrote that being an ethical investigator requires more than just obeying the law as it applies to investigations. If I’m right in that, then it seems reasonable to ask, what does it take to be ethical?
Sadly, there are no easy answers to this. It would be great to have a checklist so that you could check everything off and then conclude that a particular act was ethical. If only! The law is certainly a good start, as is common sense. However, the law might be insufficient, as I argued last time. Personal judgement can be clouded when it is a matter of taking or losing a case, or of failing to find evidence you are sure is out there.
So what else is there to help decide whether a PI is acting ethically? I would like to suggest that there are eight basic principles which can offer some guidance. These come from my own research into the ethics of surveillance, but they may have a broader application. They are as follows:
1. Just Cause
There needs to be a good reason to investigate. An investigation can lead to significant harm to the person or people investigated, and so should not be undertaken lightly.
2. Intention
The reason you are investigating should be the same as the just cause. There should not be any ulterior motives on the part of the PI nor the client.
3. Authority
Does the PI have the authority to carry out the investigation, (Are they licensed if licensing is available?) and does the client have the authority to request the investigation? If not, then maybe it should not be undertaken.
4. Chance of Success
If there is no way the PI will find what the client is looking for, then the investigation will be gratuitous. The PI will take the client’s money and invade the privacy of the person investigated (i.e. cause harm) with no chance of gain. This is clearly wrong. (For more on this, see “What to do when Clients Go Mad” by Thomas H. Humphreys and Three Ways a Private Investigator Can Get a Bad Reputation by Brian Willingham).
5. Necessity
Is the investigation necessary? Are there other means of finding the information available which are less harmful? If so, then the investigation should probably be avoided.
6. Declaration
Has the fact of the investigation been declared to an authority? If not, what is to distinguish it in the eyes of an onlooker from a personal investigation or even stalking?
7. Proportionality
Is the intrusiveness of the investigation proportionate to the reason for the investigation? An investigation into suspected adultery might not merit the same level of intrusion into the suspect’s life as an investigation into large-scale fraud.
8. Discrimination
Not in the sense of discriminating against people on grounds of skin color, religion, sexual orientation, etc. (although this is clearly important as well). Rather, is the investigation focusing to the greatest extent possible on the suspect and not his or her associates? If investigating adultery, is the investigation being carried out on the suspected cheating spouse or also on her suspected lover, work colleagues and others?
Clearly, investigators may follow many of these for pragmatic reasons as well as ethical ones. Most PIs would be unlikely to take on a case if there really were no chance of success. Likewise, who has time or money to investigate people who aren’t directly pertinent to the case?
As with the law, it’s great when pragmatism and ethics coincide—that makes the decisions easy. It’s when they don’t coincide that the ethical dilemmas arise.
Let’s apply these principles in a hypothetical case of suspected infidelity:
Cause: A woman comes to a PI because she believes her husband is having an affair. Is this a good reason to hire a PI? I would say yes—cheating involves a breaking of basic promises made at marriage. If the woman were asking to have her husband investigated to see if he were having the occasional beer with friends (and he had no history or likelihood of alcoholism), then this would probably not be a good reason.
Intention: Is there an ulterior motive to the woman’s employing the PI, or the PI in taking the case? Forgive the reference to film noir clichés, but the idea of the PI being played or satisfying his own desires (maybe he knows the husband and has a score to settle) come to mind here. Generally, this will be hard to determine on the part of the client, who may have all sorts of reasons, but not for the PI. If you’re honest with yourself, you will know your own purposes in taking on a case.
Authority: It seems a wife would have the moral authority to request such an investigation and the PI, if licensed, to carry it out. In situations where licensing isn’t available, the authority issue is less clear. What if the PI has just been released from prison for stalking? Of course, licensing doesn’t always settle the issue (the license may have been come by illegitimately), but it goes some way.
Chance of success & necessity: If there is little or no chance of the PI uncovering the truth, then, as discussed, he shouldn’t take her money. Likewise, if there are less extreme options open to the wife, the PI should advise her of these. It might lose him the particular case, but it would likely win her trust and respect, which could have future repercussions in his favor.
Proportionality & discrimination: Finally, in pursuing the investigation, are the methods used proportionate and discriminating? Is the wrongdoing sufficiently serious to put keylogging software on his computer or a GPS on their shared car? Similarly, is the investigator looking into just the husband’s activities or also those of the suspected mistress? What if she is not the actual mistress; or what if she is, but is unaware of his being married? Should she be subjected to intrusive surveillance?
There’s an often-cited objection to practicing ethically over and above what the law requires: the PI might lose business. Other less ethical companies will take the work instead. The same harm will be done, but you lose out.
In the short term this may be true. However, the argument that “if I don’t do it, someone else will” is not very convincing. (Apply it to drug trafficking or the slave trade, for instance. If an act is wrong then it’s wrong, whether or not someone else would do it.) Furthermore, in the long run, ethical investigators will gain respect, as will the profession as a whole.
In many ways, this is the very crux of ethical thinking. Acting ethically when it won’t cost you is an easy decision to make. It is when doing the right thing costs something that the rubber hits the road.
About the Author:
Kevin Macnish, PhD is a teaching fellow and consultant in ethics at the IDEA Centre, University of Leeds. He has written numerous articles on the ethics of surveillance. You can follow him at @KMacnish.