In 2013, the United Parcel Service Inc agreed to forfeit $40 million in fees that it had received from illegal internet pharmacies shipping bootleg prescription drugs using UPS services, in exchange for a non-prosecution agreement with the U.S. Department of Justice. UPS also agreed to put policies and procedures in place to prevent illegal online pharmacies from distributing drugs through its shipping services in the future. Naturally, the faux pharmacies moved over to FedEx, and when that shipping service refused to cut a similar deal with DOJ under threat of prosecution, the government persuaded a Federal grand jury to indict the company for delivering drugs associated with internet pharmacies, and thus being a willing party to a criminal enterprise.
Now many are cheering FedEx as, in essence, an ethics hero for refusing to knuckle under to the government and accept responsibility where it has none. There are two arguments against the government’s prosecution of FedEx. One is that its natural result would be to require shipping companies to open every parcel and be certain that nothing illegal is inside. The other is that trying to eradicate crime and other misconduct by creating secondary service liability is inherently unjust. By pressuring credit card companies to refuse payments to companies the government regards as breaking the law, for example, alleged illegal enterprises can be put out of business without the government having to meet its burden of proof to show they really are breaking the law. If the government can intimidate carrying companies into refusing the business of illegal pharmacies, then the illegal pharmacies never have to be prosecuted. There is a third argument, but it is irrelevant: that the government shouldn’t be prosecuting the crime of providing prescription drugs over the internet at all. This is an entirely different and separate issue: The point is that the shipments are illegal now, and FedEx is facilitating them.
Your Ethics Alarms Ethics Quiz to begin what I sense will be a busy ethics week is…
Is FedEx an Ethics Hero?
My answer? No. A hero for trying to keep 40 million dollars and a near monopoly on the illegal internet pharmacy market? A strong case could be made that UPS, which has been condemned as a pushover, is demonstrating the ethical value of good citizenship by cooperating with the government, and FedEx is simply acting like a corporation, protecting its profits.
To be clear: I’m glad someone is challenging the government on this pracrice. As the various defenders of FedEx have pointed out, the government’s pressure tactics on secondary markets and service providers, including banks, may go too far. Great: let’s test it in court. Still, painting FedEx as a model of virtue also goes too far. “We are a transportation company — we are not law enforcement, ” FedEx says. And when it knowingly facilitates an illegal transaction by shipping contents from a company it knows is engaged in illegal commerce to a customer, what is FedEx then? In such cases, FedEx is relying on contrived ignorance. It doesn’t know what is in those packages; it doesn’t want to know…but it kinda does know. This ethical juggling act is worth a lot of money.
Sometimes, the messenger is blameworthy. Last night I watched the second episode of the creepy new FX series “The Strain,” about a plot to spread a vampire virus and eliminate humanity. The ghouls behind this dire scheme hire a low-life thug whose job is to sneak a van containing the earth-filled coffin of the uber-vampire (he looks like Nosferatu on steroids) past airport security. The driver doesn’t know what’s in the truck, but based on who hired him and lots of other clues, it’s fair to say that he knows he’s not hauling squeaky toys. Is he culpable for the blood-sucking pandemic that is soon to follow? Sure he is. (I was hoping that he would be gutted by the vampire’s giant killer tongue, but it looks like he got away.)
I’ll provisionally agree that targeting the messenger is a questionable way to stop illegal pharmacies. I will not concede that asking private companies to assist in law enforcement is government over-reach: this is the same argument companies use to excuse their knowing hiring of illegal immigrants. Citizens have a duty to support the rule of law. Companies can’t insist they deserve the constitutional protection given to individual citizens and then claim immunity from the duties of citizenship.
FedEx is fighting to keep a lucrative business that happens to involve aiding and abetting crime. It has a right to take that stand, but I’m not going to get all misty-eyed about it.
Pointer: Amy Alcorn