The ethics of intentionally deceiving the media.

Law enforcement administrators interact with the news media on a daily basis. Several reasons exist for this relationship. In addition to providing current events, the news media have a distinct role in a democracy to oversee the actions of the traditional three branches of government and thereby prevent abuses of power by those branches. Law enforcement officials routinely inform the general public of their activities, and often use the news media to present this information, as well as to convey their side of a particular incident or their position on an issue.

This relationship between the media and law enforcement sometimes creates certain antagonisms between the two parties. To begin with, law enforcement officials do not always want particular matters reported to the general public, often to protect the integrity of an investigation or even to avoid embarrassment to their departments. However, media representatives act under a responsibility (i.e., the public's right to know) to present certain information regardless of the desires of law enforcement officials. Also, they zealously avoid appearing as the voice of law enforcement in order to appear impartial. Because the public has an interest in the activities of law enforcement, the media, as a business entity, has an economic interest to report on law enforcement matters.

Moreover, because media representatives have ethical obligations to present only the information they believe to be factual, they must not allow government officials to use them to present false information to the general public, regardless of the reason.(1) Therefore, the question remains, are law enforcement officials under any similar ethical obligation to not intentionally present false information to the media, either for dissemination to the public, or to thwart a media inquiry into law enforcement activities?(2) Making the decision to lie to the media involves many complex issues, including some important ethical concerns.

The Decision to Lie

Before intentionally manipulating the media by means of deception, law enforcement officials must consider their actions carefully. For example, many ethics scholars have stated that law enforcement officials should never knowingly present false information to the media.(3) However, suppose a law enforcement administrator conducts an undercover operation designed to expose a ring of narcotics suppliers in a particular area of a city. The administrator may desire to entice the ring to move into another area of the city where undercover officers can purchase narcotics without suspicion. To accomplish this, the administrator drafts a press release announcing the seizure of a large supply of narcotics destined for the area of the city where the undercover officers are operating and gives it to the department press officer, who does not know that it contains false information. After local newspapers print the press release, the undercover officers approach the subjects of the investigation claiming they need a new supplier. This approach succeeds, and the subjects eventually are arrested after passing narcotics to the undercover officers.

Clearly, the individuals involved in deciding to lie to the press made a choice to present false information because of a belief that the use of deception prevented a greater evil than the lie (i.e., narcotics suppliers being apprehended). This remains a moral and ethical choice. Individuals, including law enforcement officials, make such choices frequently. Most individuals will lie to protect another's feelings, to get someone else to do or feel as desired, or even to avoid embarrassment to themselves. Consciously or subconsciously, this decision to lie always comes down to a moral balancing of the consequences involved.

Moreover, law enforcement officers often use deception as a part of their duties in conducting criminal investigations. Informants, undercover operations, and stings serve as just a few examples. While some ethics scholars and researchers question whether such practices by government entities are ethical, most accept them as morally permissible as long as they are conducted within certain legal parameters such as the restrictions on entrapment.(4)

The common deceptive practices employed by law enforcement officials primarily involve deceiving individuals who they have identified as being involved in criminal activities. The officials must develop information and evidence not readily available from other sources but necessary to successfully prosecute a criminal case. Some argue that the ethical justification for such practices far outweighs any negative effect of the deception by the positive results surrounding the identification and successful prosecution of a criminal who would otherwise evade detection and prosecution. However, other ethical issues arise when the target of the deception becomes the news media, as opposed to a suspected criminal.

Ethical Obligations

The first ethical issue concerns the fact that the ultimate "victim" of the deception is the general public who receives the false information from the media. Because law enforcement serves the general public, a question arises whether law enforcement officials have ethical obligations to present only truthful information to the public. Some accept "no comment" as a morally sound response when law enforcement officials have information that they cannot or should not share with the general public. Where public disclosure laws exist, the courts can decide whether to force law enforcement to provide information to the news media. But some scholars believe that a "no comment" response and a disagreement concerning the applicability of laws technically are not lies. While a suspected criminal may not always have a right to expect truthfulness from law enforcement, citizens should have a right to expect the truth from public officials, including law enforcement officials, at all times. Some officials question whether they should ever ethically ignore that right.

A second ethical issue revolves around the reason law enforcement officials use deception with the news media. While law enforcement officials practice deception with suspected criminals to gather information for presentation to appropriate prosecutorial or judicial authorities, they also may need to get false information into the public arena in order to elicit some action from these suspects. For example, in a case where a criminal is unknown, the false information can cause the offender to be identified.(5) Because media attention on high-profile cases can hinder professional and thorough investigations, some law enforcement officials may attempt to divert media attention from such sensitive incidents. Yet other law enforcement administrators may desire to discourage media attention from matters which prove an embarrassment to another official or their agency. However, a question arises whether these reasons prove ethically sufficient to legitimately deceive the media.

Ethical Justifications

In order to help law enforcement officials resolve ethical dilemmas, they should look at some basic principles. Ethics scholars often argue that in order to justify an act, the actor must be willing to publicize it - in other words, they must be willing to justify the act publicly.(6)

Another theory proposes three requirements an act must meet to have integrity: "1) discerning what is right and what is wrong; 2) acting on what you have discerned, even at personal cost; and 3) saying openly that you are acting on your understanding of right and wrong."(7) This third step, acting openly, constitutes the publicity essence of the publicity requirement. Therefore, before individuals can morally and ethically justify deception, they must be willing to publicly justify the decision to deceive. Police officials who engage in the common forms of law enforcement deception generally do not find it difficult to meet this requirement. For example, no law enforcement official would hesitate to publicly defend a decision to conduct an undercover operation designed to gather evidence against organized crime figures. In fact, this defense occurs routinely during criminal trials.

Law enforcement officials contemplating intentionally deceiving the media should ask similar questions - if the official would be willing to publicly explain why the deception was used, and if they are willing to accept any consequences of the public disclosure. The decision to lie to the media remains, in effect, a decision to lie to the general public. Law enforcement officials should only consider such a decision in the rarest of circumstances when some overriding public safety issue forces the action. The ethical requirement of publicity becomes part of this equation when a law enforcement officer considers a lie to the public, as opposed to a lie to the media, to avoid public panic. If some morally overriding reason, such as public safety, obliges an official to lie, then it also requires an explanation or apology for the deception later, after the crisis has passed. The possible consequences of such an admission deserve consideration in the initial decision.(8)

Ethical Restraints

Compared to those legitimate instances when law enforcement officials must intentionally deceive the media, it becomes clear that no ethical justification exists for those officials who lie to avoid embarrassment to another official or their agency. No official who does so would publicly defend such a decision later, and may even go to great lengths to avoid the deception ever becoming public knowledge.

Likewise, it becomes difficult to imagine law enforcement officials desiring to publicly explain why they decided to deceive the media in order to divert their interest in a pending investigation. Such an action would threaten the First Amendment because public officials would thwart a legitimate press inquiry. Officials should only use such a justification in the most serious public safety issues, and even in those instances, they may consider an appeal to the media to delay a story. The events prior to the apprehension of the Unabomber serve as an example of responsible media outlets heeding such requests in the interest of public safety.

The final rationale for intentional deception of the media is a desire to expand a pending investigation by distributing false information to a suspect. While practical issues may force an official to decide that such deception may not be in the best interest of the law enforcement mission, no basic ethical principles exist that would absolutely prohibit such an act. As long as the official remains reasonably willing to publicly defend such a decision, the ethical issues justifying this type of deception are the same as those for more traditional forms of law enforcement deception.

The Consequences of the Decision to Lie

Law enforcement officials should weigh the consequences of the decision to use deception. The result that the deception might have on the credibility of the law enforcement organization with the media and the public represents a significant consequence that officials must consider. Citizens, unlike suspected criminals in certain situations, have a fight to expect the truth from public officials. Officials should view this right as more than a minor consideration in the balancing of consequences. In some situations, the consequences could prove significant enough that the administrator may decide not to use the deception. However, no one can coherently argue that this right remains absolute for all times and circumstances.

In those cases where the official decides that all of the positive consequences of deception outweigh all of the negative consequences, the official must then publicize the deception after the fact. Even if criminal court proceedings do not force the official to publicize the deception, the official still has an ethical obligation to do so. The official must consider the likely consequences of this public disclosure in the decision process.

Conclusion

Law enforcement administrators must think about more than just law enforcement objectives in deciding whether to use deception involving the media. The practical and ethical considerations of such a decision extend beyond any one investigation. In considering the actions of the administrator illustrated in the narcotics undercover investigation, the ethical dilemma poses a significant problem. If the administrator does not publicize the media deception once the case has concluded, most ethics scholars would say that the deception was not ethical. If the administrator does publicize the deception, the media will likely condemn the deception and will certainly be less trusting of the next press release issued from the department. Either way, administrators pay a price - ethics or credibility. Law enforcement administrators should explore ways of handling these ethical dilemmas in a way that keeps the cost to a minimum.

Endnotes

1 The Ethical Principals of the American Society of Newspaper Editors, Article IV, provides in part, "Every effort must be made to insure the news content is accurate...." Similar provisions appear in the Associated Press Managing Editors Code of Ethics and The Society of Professional Journalists Sigma Delta Chi Code of Ethics.

2 The Federal Bureau of Investigation does not advocate the intentional deception of the news media.

3 Edwin J. Delattre, Character and Cops Ethics in Policing Third Edition, (Washington: The AEI Press, 1996), 162.

4 For a discussion of the general ethical issues surrounding the use of deception by law enforcement, see Jerome H. Slotnick, "Deception by Police" Criminal Justice Ethics, Vol. 1, Number 2, Summer/Fall 1982, 40-54; Delattre, Ibid, 160-173; and John Kleinig, The Ethics of Policing, (Cambridge: Cambridge University Press, 1996), Chapter 7.

5 In 1990, Clay County, Arkansas, Sheriff Darvin Stowe gave media outlets a false story that an attorney had been assaulted in order to deceive a suspect into believing that the assault had been performed pursuant to a payment by the suspect to an undercover officer. Law and Order, Vol. 39 No. 1, January 1991, 4.

6 Sissela Bok, Lying, Moral Choice in Public and Private Life, (New York: Vintage, 1989) 92.

7 Stephen L. Carter, Integrity, (New York: HarperCollins, 1997), 7.

8 Supra note 3, 165.

RELATED ARTICLE: Request for Assistance

Developing Law Enforcement Photography Guidelines 

Digital imaging technologies have been used in a variety of scientific fields for decades, but their application within the criminal justice system is relatively recent. Therefore, there is a need to gather and disseminate accurate information regarding the proper application of these and other imaging technologies throughout the criminal justice system. In 1997, the FBI Laboratory formed a group now identified as the "Scientific Working Group on Imaging Technologies" (SWGIT), to address that need.

The group includes approximately 25 representatives from law enforcement agencies at the federal, state, and local levels, as well as imaging scientists from academia. They have recently completed a preliminary set of general guidelines and recommendations relating to the use of various imaging technologies by law enforcement professionals. This draft document is titled: "Definitions and Guidelines for the Use of Imaging Technologies in the Criminal Justice System. "While this first document addresses law enforcement imaging applications in the most general of terms, subsequent documents will focus on different applications such as crime scene photography and surveillance photography.

The purpose of this notice is to request your assistance in the development of these guidelines. This document is available for review on the Internet via the FBI home page as part of the FBI Laboratory's electronic journal "Forensic Science Communications." To view the document there, access the FBI home page at www.fbi.gov, click on Science and Technology, and select Forensic Science Communications. Individuals with access to Law Enforcement On-line (LEO) can also find this document via links at the SWGIT special interest group location.

If you are interested in responding, please do so prior to June 1, 1999. Instructions for submitting comments are included with the document. The SWGIT will incorporate the responses generated by this draft prior to issuing a final version of this document.