By Mel Copen
Much that is of questionable ethics is legal! Stated another way, much that is legal is not ethical!
That statement has probably been valid ever since man first began to form communities and create laws. But the gap between the two concepts seems to be widening as we become "comfortable" with deceptive practices that were considered reprehensible not too long ago. Presidents lie, resumes are falsified, students plagiarize and except for an unfortunate few, most get away with it due to public indifference. What's the big deal? Everyone does it! Perhaps I am just out of step with the times.
Webster's defines ethics as "a system or set of moral principles; the branch of philosophy dealing with values relating to human conduct, with respect to the rightness and wrongness of actions and the goodness and badness of motives and ends." "Legal" on the other hand, is defined simply as: "permitted by law, lawful."
In an ideal situation, the legal and ethical systems should be mirror images. That will probably never be. No matter how carefully laws are written, life is too complex to anticipate all the possibilities (also providing loopholes that can be "creatively" exploited). Conversely, ethics are hard to define and subject to constant change in ways that do not always occur universally or affect all segments of our society.
Often deception arises out of conflicts of interest, some of which, although not purposely camouflaged, are largely out of sight of the general public's awareness. For example, many investors are not aware that investment analysts making recommendations often have personal positions in the securities they are promoting.
Doctors claiming miracles for alternative medicinal preparations earn their livings by selling those preparations. Many legislators who are lawyers have great self-interest in the nature of the laws that are passed. This does not mean that all such situations are problematic; but it does mean that, without transparency, the potential for problems exists. These days, when major scandals erupt, concern fades quickly, and inaction or weak action is tantamount to acceptance.
Candy bars that promise 50% fewer calories meet that claim by making the bar 50% smaller. And movie ads may truncate a reviewer's "worst movie of the century" to "movie of the century."
The Enron situation provides an illustration. It would appear that the accounting profession, eager to accommodate clients, accepted many of the practices used by Enron to deceive. Here we seem to have a situation where the policeman is in bed with the "policed." Everyone is claiming that they did nothing illegal. That remains to be seen. But what about the ethics of the actions taken?
Recently, a businessman who is building an Internet-based marketing organization described how he gets his prospect lists by using readily available software to hack into other companies' computers and "steal" (my words) their mailing lists and customer information. Admitting that the practice was "questionable," he justified what he was doing on the basis of similar efforts by his competitors. Additionally, traditional direct marketing is expensive (therefore raising costs to the consumer) and eliminating the US mail eliminates the need to cut trees. A twinge of conscience, but no more; and the existence of the software in the first place, of no concern.
Turn on television today. For $29.99 or some similar figure plus a "nominal shipping charge (small print explains that there are 3 installments of $29.99 each, and the shipping charge often yields greater profit than the sale of the product) you can get:
- a supply of "scientifically proven" bedtime diet pills which, with no exercise and your eating anything you want, is "guaranteed in two weeks to drop all the weight you have always wanted to loose - all while you sleep;
- a "scientifically designed" exercise machine that, in two months, will make you a candidate for the front page of Muscle Magazine or the swim-suit edition of Sports Illustrated (whichever you prefer)
- A link to an "authentic, proven" psychic who will answer all your questions and guide you through the rest of your life
- A "proven" business scheme that will allow you to become a millionaire while spending just a few hours a week in the comfort of your own lounge chair in your own den while the money pours in.
A bit of an exaggeration - but not much. There are several troubling aspects here. First, the claims are unsubstantiated, with no requirement that they be authenticated, despite the fact that many are specifically designed to deceive. Second, many people don't seem to see this as a problem, either legally (which it usually isn't) or ethically. We're used to exaggeration. A restaurant claims "the best chili in town." By what standard? But who cares - except perhaps other a few other restaurants. It's like professional wrestling - it's entertainment. But unlike professional wrestling, where nobody but an occasionally wrestler gets hurt, many naive people are taken in by these schemes. They are not in a position to evaluate the claims which prey on their dreams and needs. But their individual disappointment or financial loss is small enough that, generally, we don't consider it to be a problem worth addressing. It's only when something hits [bold] big [unbold] (like Enron) that there is an uproar.
Interestingly, this type of verbal deception has been "protected" under The Constitution, which never intended to imply that deceit (or attempt to deceive) should be legal. The 1st Amendment states that "Congress shall make no law...abridging the freedom of speech, or of the press...." The difficulty arises between intent and implementation. Most jurists have found it so difficult to draw a line, and the concept of "freedom of speech" is so fundamental to our values, that they have erred on the side of leniency rather than take any action that would threaten this fundamental tenet of American life.
But there are limits -- as indicated in Supreme Court Justice Holmes' admonition that shouting "fire" in a crowded theater when there is no fire and causing panic is not an act protected by the 1st Amendment. Similarly, the drunk, shouting in the street and waking everyone up at 2 a.m. can be arrested for disorderly conduct. We do have limits. But it takes both courage and wisdom to apply them.
Today it is hard to see where those limits are. It is important to protect the first Amendment. But it is also important to protect people from deceit. Perhaps the answer lies not in our criminal system but in civil law. What if the government was empowered to bring class-action civil suits, on behalf of people who had been or might be deceived, against those perpetrating the deception. Instead of a large number of small problems that can easily be ignored, the total impact of these deceptions is substantial. And if the enabling laws were framed to eliminate the subterfuges that exist to shelter assets from such actions, we might have a solution. In essence, this would protect a person's right to speak, but then make that individual responsible for any consequences - a principle that we have long accepted. And perhaps this would start changing attitudes as well.
The most important issue is whether we will continue to expand the boundaries of ethical behavior or try to reverse the process. Some of today's acceptance probably comes from frustration with the inability of enforcement agencies to take action. Perhaps it is time for a change and a moral resurgence that also puts teeth into dealing with these situations while preserving fundamental rights.
Dr. Melvyn Copen of Cumming is an educator and businessman who has worked and lived in dozens of foreign countries and provides consulting services for businesses and organizations throughout the world. Please share your comments with him via email at email@example.com.