The battle to define what is right and wrong regarding social networking sites continues. The Philadelphia Bar Association has decided that it is an ethics violation for a lawyer to recruit someone to make a Facebook “friend request” to a witness to pass on to the lawyer the contents of the witness’s Facebook page. The ethics committee wrote that this was dishonest conduct by the lawyer even though the witness willingly accepted the fake “friend” and would have accepted almost anyone who asked. The same tactic was pulled on University of Wisconsin-La Crosse student Adam Bauer, who has over 400 Facebook friends and who accepted a friend request by an attractive young woman he didn’t know because, well, she was an attractive young woman. She was working for the police, however, and found photos on the site of Adam and a friend, Tyrell Luebker, with adult beverages in hand. They both were ticketed for underage drinking, and ended up paying a fine. The same thing happened to sophomores Brianna Niesen and Cassie Stenholt, whose photos holding beers were posted on another student’s site. They were fined too. The students feel betrayed—abused—ill-used. “I feel like it is a breach of privacy,” Stenholt said. “You feel like you should be able to trust cops.” Bauer said that he felt like he was in the clutches of a police state. “I just can’t believe it. I feel like I’m in a science fiction movie, like they are always watching. When does it end?” he said. If the Facebook mole tactic is unethical for lawyers, how can it be ethical for police? Easy. The professional duties and ethical standards for lawyers and police are completely different. A lawyer’s primary duty is to be worthy of a client’s trust and the public’s trust, and using deception for any purpose, even a laudable one, erodes trustworthiness. A police officer’s primary duty is law enforcement, and courts have long held that deception is a legitimate and sometimes essential tool for the job. A police interrogator can lie to a suspect in order to get information or a confession. Undercover work, using false identities, disguises and multiple lies, are standard and professionally ethical techniques to break drug rings, infiltrate terrorist groups, gather evidence on organized crime and undermine street gangs. Lawyers (with the exception of prosecutors, in most jurisdictions) cannot do any of this under the profession’s ethics rules. Okay, police can use Facebook fakes to nab under-age drinkers. But should they? The lively libertarian minds over at Popehat (which discovered this story: thanks, Popehat! ) believe not. Their ethical reasoning, however, is questionable. Here are their objections and other arguments that cast the police as the ethical transgressors:
- “The law is stupid.” A matter of opinion. I think restricting alcohol use to those 21 or older is an excellent policy. Even if we accept the “stupid” judgment, however, no citizen has a right to pick and choose which laws to obey according to his or her own opinion as to their relative merit. The students knew the law, and violated it. Violating the law, any law, is ethical misconduct because it defies societal behavior norms that have been duly codified. The exception is when the violation is intentional civil disobedience, when one seeks punishment and publicity to show a law is unjust (or stupid.) This isn’t what the students were doing, however. They just wanted to get hammered. Nor should police be making judgments regarding which laws should or shouldn’t be enforced. That’s not their job.
- “The police have better things to do.” “I feel like it is shady police work and a waste of taxpayer money to have him (an officer) sit on the computer on Facebook when he could actually be doing police work,” Luebker complained. Sorry: if there’s a law, police should enforce it. Not enforcing a law renders it pointless and void. It also undermines respect for laws generally. This complaint is really just a rationalization closely related to my least favorite rationalization of them all, #12 The Comparative Virtue Excuse. If elected officials and taxpayers want to argue that police should allocate resources differently, that’s their privilege. Lawbreakers show excessive gall when they whine that the police should be out nabbing bigger fish. Here’s a better solution to their problem: don’t break laws.
- “Bauer and Luebker were drinking in a private residence.” Bauer argued that he was acting responsibly by drinking at home. “We were actually trying to be safe and not go out on the town and get crazy,” he said. Well, I suppose breaking the law responsibly is preferable to breaking it irresponsibly. There still is no right to break laws at home. Furthermore, placing photos of private law-breaking on Facebook makes it a public event. Then it is flagrant and shameless lawbreaking. The police were quoted as saying that such publicity undermines respect for laws and encourages others to violate them. This is correct. It also explains how enforcing relatively minor laws can have special significance.
- “The photos didn’t prove anything, so the police shouldn’t have pressed charges.” Legally, this argument is sound. I question whether the photos alone would have been enough to get convictions in a trial. The glasses could have had ginger ale in them. The photos might have been photo-shopped. There is nothing illegal or unethical, however, with the police issuing citations based on reasonable conclusions and evidence subject to varying interpretations. The students pleaded “no contest” and paid the fine, probably because challenging the charges in court, even successfully, would have cost more. (And they were also guilty, based on their comments afterwards.)
A theme that I suspect will be echoed often on these pages is that those who knowingly break laws don’t deserve sympathy even though the circumstances of their arrest may involve unfair, deceptive or even illegal methods. The law enforcement officials who engaged in misconduct may be culpable and deserve condemnation or sanctions, but this does not change the ethical verdict regarding a violator’s crime. That wasn’t the case here. The police were sneaky, but it is ethical for police to be sneaky. Utilitarian principles apply in law enforcement, within certain court-defined limits. Society has chosen to approve the use of deception in the course of law enforcement, and that makes it ethical.