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Searching for safe procedures.

Searching for Safe Procedures

JANUARY 16, 1977. FBI AGENTS ARRESTED a 23-year-old man in Riverside, CA, 60 miles south of Los Angeles, on charges of espionage.(1) His name - Christopher Boyce, an employee of TRW, who had been selling valuable and extremely sensitive and classified information to the Soviet Union.

June 23, 1981. FBI agents arrested 58-year-old William Holden Bell. He, too, was charged with espionage. Bell, an engineer for Hughes Aircraft Company in Los Angeles, had been selling classified information to a Polish intelligence officer whose service worked closely with the KGB.

Both Boyce and Bell were cleared for and had access to classified government information. Background investigations had been conducted on both men, and they were considered loyal, trustworthy Americans. Boyce was the son of a respected ex-FBI agent; Bell was an ex-serviceman. Both demonstrated a sense of responsibility to those who knew them. Both committed espionage against their country.

Damages resulting from the loss of classified information can be devastating. From an economic perspective, the losses resulting from the Boyce and Bell cases reached into millions of dollars. From a security perspective, valuable national secrets were compromised.

Espionage is a reality. An employee involved in espionage is a defense contrator's ultimate nightmare. If someone is determined to commit espionage, it may be almost impossible to stop that person. A defense contractor's main objective, however, is to prevent the compromise or loss of classified information through safeguards.

In an attempt to prevent classified information from being removed from facilities, many defense contractors have established search and seizure policies and procedures. Policies of this nature are becoming a necessity throughout the defense industry. Search and seizure policies have been applied to drug testing, polygraph examinations, and person and personal property searches.

Before establishing search and seizure procedures, a contractor must first determine whether it is an agent of the government. If so, both the policy and the company are bound by the Fourth Amendment of the Constitution.

The Fourth Amendment protects individuals from unreasonable searches and seizures and states that warrants for a search or an arrest cannot be issued without probable cause. Normally, this concern applies only to government-owned, contractor-operated (GOCO) companies or when a contract specifically makes the company and agent of the government.

Defense contractors, however, are usually considered private companies and, therefore, are not bound by the Fourth Amendment. When this is the case, a contractor must explore and review the applicable legal issues, recognizing that certain civil actions could be brought against it with regard to tort liability. The concept of tort law basically supports three general policies. Tort law serves to

* compensate victims for their losses,

* deter future conduct of a similar nature, and

* express society's disapproval of the conduct in question.(2)

Although a defense contractor's objective is to implement a policy to prevent the compromise or loss of classified information, such a policy must also be viewed as intentionally interfering with people and their property. This interference falls under intentional torts and, therefore, is subject to tort liability.

Intentional torts include battery, trespass to chattels, defamation, and false imprisonment. A contractor must recognize the various liabilities it faces and develop procedures that will serve as a defense to those liabilities.

Battery, for example, is a harmful or offensive contract with a person, resulting from an act intended to cause a person to suffer such a contact or apprehension that such contact is imminent.(3) Battery can be the simple act of touching another person. The intent to harm is not relevant with respect to the civil liability concern of the contractor.

To avoid being charged with battery, search and seizure procedures should limit searches to containers, where possible. This is not to say people cannot be searched. However, when individuals are searched, they should consent to the search beforehand. Consent avoids liability.

Trespass to chattels involves intermeddling with the personal property of another without that person's permission.(4) The trespass must interfere with the personal property owner's right to exclusive possession and enjoyment of that property.(5)

Trespass to chattels includes searches of personal containers, briefcases, purses, boxes, envelopes, etc. To protect against such liability, a policy should also consider consent as a requirement.

Consent must be viewed and established as a defense regarding the contractor's liability with respect to battery and trespass to chattels. Proper consent can be established and satisfactorily upheld by two methods.

A contractor can post a notice regarding the company's search and seizure policy. This notice should be placed in clear view at all entrances to the facility. It should list items subject to search and say that consent to search is a requirement for entering and exiting the building. When the notice is properly posted, anyone who enters the facility has demonstrated an implied consent to a search.

The second method can be implemented at the time of a search. Prior to searching a person or his or her property, the individual conducting the search should seek that person's permission. Consent can be oral or written. If the consent is oral, however, a witness should be present to avoid liability.

Search and seizure policies and procedures should also safeguard against defamation. Defamation is that which injures a person's reputation and diminishes others' esteem for, respect for, goodwill toward, or confidence in an individual. It can include that which excites adverse, derogatory, or unpleasant feelings or opinions against the individual.(6)

Defamation occurs in two ways. If the person conducting the search orally accuses someone of theft or espionage, a contractor may be liable for defamation. The mere fact that company or government property is found on an individual when he or she is leaving the building does not mean the person intended to steal or misuse the property. It could have been an honest mistake.

Another way a contractor's liability can be jeopardized is to intentionally single out an individual without probable cause. Doing so can be construed to imply accusation without cause. It is important that all searches be conducted in a manner consistent with the policies and procedures established by the contractor.

False imprisonment or false arrest is another element that must be reviewed when a contractor is establishing a search and seizure policy. False imprisonment involves the unauthorized restraint of a person's freedom of movement. "The only elements necessary to create liability for false imprisonment are detention and its unlawfulness. Malice and want of probable cause need not be shown."(7)

With regard to restraint, it is not necessary actually to touch a person. The person simply must be restrained from free movement. Restraint of movement, for example, may be demonstrated through threats or demands.

Liability resulting from false imprisonment is most likely to occur when the individual conducting a search refuses to let an employee leave the building because he or she will not agree to a search. To avoid this liability, a policy should identify the proper procedures to be taken if an employee refuses to consent to a search.

In many companies, refusal to submit to and abide by company policy is grounds for termination. However, this policy needs to be explained to employees. If an employee still refuses to submit to a search, the company must decide what actions it wants to take.

Many search and seizure policies and procedures involve common sense. A policy, for example, should state its purpose. Procedures should define the characters - employees, visitors, company premises, containers, etc. - and identify those authorized to conduct searches. Normally, this will be the guard force and security officers within the company. Procedures should also be established to ensure that all searches are conducted by two authorized individuals for the purpose of providing witness to the search and possible defense to liability.

People cannot be expected to support and abide by policies of which they are unaware. The company should make those subject to the policy aware of it, if for no other reason than to provide a possible defense for liabilities involving battery and trespass to chattels. Proper notice is proper procedure.

Another issue relevant to a search and seizure policy involves the discovery of company or government property being removed from the building by unauthorized means where evidence supports criminal intent. The contractor must be aware of the proper authorities to contact. Espionage, for example, should be reported to the FBI. These issues and respective procedures do not need to be identified in the search and seizure policy. They do need to be addressed, however, and procedures should be identified by the company's security management. Individuals who conduct searches should be cognizant of their responsibilities and the necessary procedures in the event of criminal conduct.

Due to the ever present threat of espionage and their responsibility to protect classified information, defense contractors have a justifiable need to establish a search and seizure policy. However, such a policy must be viewed as an intentional interference with a person; therefore, contractors need to consider the relevant legal issues. Those legal issues must be addressed and satisfied in a way that does not interfere with the protection of national defense and national security.

(1) Robert Lindsey, The Falcon and the Snowman (New York: Pocket Books, 1979), p. 299.

(2) Arthur J. Bilek, John C. Klotter, and R. Keegan Federal, Legal Aspects of Private Security (Cincinnati, OH: Anderson Publishing Company, 1980), p. 158.

(3) W. Page Keeton, Prosser and Keeton on The Law of Torts, 5th ed. (St. Paul, MN: West Publishing Company, 1984), p. 39.

(4) Dan B. Dobbs, Torts and Compensation (West Publishing Company, 1985), p. 61.

(5) Kenneth W. Clarkson, Roger L. Miller, and Bonnie Blair, West's Business Law Text and Cases (St. Paul, MN: West Publishing Company, 1980), p. 41.

(6) Keeton, p. 773.

(7) Bilek, Klotter, and Federal, p. 158.

About the Author ... Michael C. Gardner is senior security specialist for E-Systems in Garland, TX. Gardner is pursuing a master of science in administration degree from Central Michigan University and the ASIS Foundation. This paper was written to fulfill course requirements. Gardner is a member of ASIS.
COPYRIGHT 1989 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
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Title Annotation:defense contractors' search & seizure policies & procedures
Author:Gardner, Michael C.
Publication:Security Management
Date:Sep 1, 1989
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