Non-judgmental Ethics Sunday: Can I Profit From Accidentally Obtained Information?

April 5, 2015 by Joshua
in Ethicist, Nonjudgment

Continuing my series of alternative responses to the New York Times column, The Ethicists, looking at the consequences of one’s actions instead of imposing values on others, here is my take on today’s post, ”Can I Profit From Accidentally Obtained Information?

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At a previous job, I was responsible for complex negotiations that frequently involved email exchanges of draft transaction documents. One party would do a “redline” of the draft submitted by the other party, so that the receiver could see what changes the sender required. On one occasion, our counterparty mistakenly sent back its redline so that I was able to see text not intended for me: comment boxes and other evidence of what that company’s employees were saying to one another about their negotiating positions. This unintended transparency presumably occurred because the writers did not understand how to use Microsoft Word’s track-­changes functions. I was pretty certain that it was a genuine mistake and not a clever ruse. Using this knowledge, I was able to strike a better deal for my employer. Was it unethical to do so? NAME WITHHELD, NEW YORK

My response: This happened in the past. You can’t change anything. If someone told you they thought it was unethical, would you do anything about it? What does it matter how someone labels your behavior?

Aren’t you more concerned with how you might change your behavior in the future? If so, why don’t you consider what I usually recommend, which is to create more options, which puts you into problem-solving mode instead of judgment mode, and to consider the consequences of your actions, which makes you think with compassion and empathy?

Calling something ethical or not just tells you someone’s opinion. Everyone has an opinion and no one’s agree entirely with anyone else’s. You thought it was ethical when you did it. Your opinion may change. You might help yourself more by asking what other options others might suggest to help you should you face a similar situation in the future.

The New York Times Response:

Kenji Yoshino: I assumed when I read this that the individual was a lawyer, so I went to my friend and colleague Stephen Gillers, who’s an expert on legal ethics. He pointed me to a direct rule that says that a lawyer who receives electronically stored information relating to the representation of a client who knows, or reasonably should know, that the information was inadvertently sent should promptly notify the sender.

Then it was pointed out to me that nowhere in the question does it say that this person is a lawyer, so that made me ask, do different standards apply if this person is not a lawyer? My initial instinct was yes, lawyers are officers of the court and part of an honorable profession. But as I continued to think about it, I arrived at the view that the values embodied in the idea of an honorable profession should also carry over to an agent of a corporation. I still think the ethical position is to notify the individual on the other side.

Jack Shafer: It seems to me that everything from the stock market to poker to the business of journalism to negotiating for a car and car loan is rampant with accidentally spilled knowledge that aids one side in a negotiation over the other. Do ethics require you to be a chump? Business is war. As long as your methods of intelligence gathering are ethical — you don’t wiretap or break into the office of your customer or competitor — you should feel free to use the information that drops into your lap. You should also feel free, if you think it will advance your interests, to inform the people you’re negotiating with that they have poor Microsoft Word hygiene.

My answer might be a little self-­interested, because journalists frequently discover useful information in precisely the way the letter writer describes. No journalists I know of, even the ultra-­­ethical among my herd, would instruct the government to turn off the comments function if it was revealing useful information.

Yoshino: In fairness to that point of view, even within the legal realm, there are many lawyers who say that in part because you have a client, the duty of advocacy requires you to exploit any mistakes an opponent makes that would help a client.

Amy Bloom: Now that this deal has already proceeded and gone well for the letter writer’s company, certainly the most ethical thing he could do would be to call their attention to their Microsoft hygiene problem. This would be an ethical step forward.

Shafer: What if you had a client and every time he was lowballing you on a bid, he scratched his nose? And you observed this again and again and again, or some colleague tells you that your competitor has a tell — he scratches his nose. Would you inform the client that he has this horrible tell that is allowing you to beat him in negotiation after negotiation?

Bloom: What I can observe from people’s body language is different from somebody’s sending me information that I would go out of my way to make sure they never received from me. There is more of an even playing field: We all have tells, and some of us are better observers than others.

This actually violates the golden rule. I would certainly want somebody, if I had inadvertently revealed all that material, to let me know. It cannot be a bad thing to establish a higher moral ground for the entire corporate negotiation.

I lent money to a friend of 20 years to help her move out of a relationship that was abusive and lopsided with respect to money and assets, for which she was the poorer. The relative value of the money for me is a week’s worth of vacation travel. Five weeks later, she returned to the relationship and the house. I’m bothered on a number of levels, but am I on shaky ethical ground to ask for repayment from the partner to a) reinforce the consequence of his bad behavior, and b) put it in escrow so that the next time he is threatening, she has funds to escape? NAME WITHHELD, CHICAGO

My response: You’re asking if it’s ethical to ask a question? Besides my usual comment that calling something ethical or not is just labeling it with someone’s opinion, you’re asking about asking a question.

I’m trying to remember if I’ve ever heard anyone suggest asking a question is ethical. It’s not like yelling fire in a crowded theater. How would anyone get hurt by asking a question?

Why don’t you ask your friend? You can use this situation to build your relationship with her and understand the situation more and find out if you’re helping, as you think you are, or meddling, which people often are without realizing when they try to help people without having been asked.

The New York Times Response:

Bloom: If you can get a man who has anger-­management issues and is abusive toward his partner to pay you back, I am impressed. The person who owes you the money is your friend.

In general, my position is that any time I lend money, I assume that it is in fact a gift and am prepared to make it. If you are worried about what’s going to happen next to your friend, you might suggest that she keep the money and put it in a bank account in case she ever needs it next time. But if she is back with her partner, she is probably not going to appreciate your reminding her that there might be a next time, and that could cause a chill in your friendship.

Yoshino: I agree almost entirely. I guess I would add that there’s a separate ethical problem with the letter writer’s inserting himself into the relationship. And where I might play a little more hardball than Amy is to say, “O.K., I’m going to treat this money as a gift, but I can’t keep doing this over and over again, so please don’t expect that I can do this in the future.” Otherwise, resentment will build if the expectation on the part of the friend is that she can come back to the letter writer at any time and get a loan or a gift.

Shafer: Like both of you, I’m wary about this whole mixing of one’s money into somebody else’s love problem. And I agree that if anybody needs to pay the money back, it’s the person who was granted the loan.

At my graduate school, we are required to sign a statement to the effect of “We won’t plagiarize or cheat, and if we see someone cheating, we’ll report it.” A recent situation made my classmates and me consider what the ethical thing to do is. We had a topic for a group paper that one member had already written about. On her own, she posted her paper to the Google document where we were starting an outline. The parts that we did use, we reworded, because it was for the same class. (Some group members have reused papers for different classes; some never thought of doing so.) Is it cheating to use her paper as a starting point and to paraphrase and edit it to fulfill our group-­­paper requirements? NAME WITHHELD, INDIANAPOLIS

My response: Your school likely has an ombudsman, whose job is to work on issues like this anonymously. Instead of asking newspaper columnists about abstract issues of ethics on contracts whose wording you only hint at, you could talk to someone with relevant experience and knowledge about the specific case.

Talking about abstractions distracts people from figuring out how to solve their problems.

Come to think of it, since you’re asking if it’s cheating, not specifically about the ethics, you can ask the teacher. If it’s cheating and you approach the instructor first, you’ll almost certainly get the chance to revise it without penalty, which your contract probably implies you’d have to. If it’s not cheating, no problem in asking.

What’s your goal in school, anyway? If it’s to improve yourself, here’s a chance to do it beyond just classroom book learning.

The New York Times Response:

Yoshino: This is obviously plagiarism. If you need to paraphrase the original paper, that should be a tip that you are not willing to admit to what you’re doing, which is using somebody else’s work. This behavior by the letter writer is clearly unethical.

Shafer: Most colleges and universities have explicit policies on plagiarism in their guidebooks or elsewhere that would automatically rule this out. I would like to take the letter writer aside and say that the whole point of being asked to write an original paper is so that you learn something beyond how to type faster. These rules are not designed to make you miserable but to engage you and make certain that you get value out of the class. If you’re copying or paraphrasing someone else’s work, you are actually injuring yourself; you’re not injuring the person whose copy you lifted. Plagiarism is a self-­inflicted wound.

Bloom: If we consider one of the important parts of ethics to be the good and happy life, then to plagiarize is to make your life less ethical, less happy and less good.

Yoshino: I would add that this is going to become more and more complicated, in that sharing on Google, social media or what-­have-­you makes it seem much more as though intellectual property is just in the air. Things that seem much more black-­and-­white to us are less so to individuals using different technologies than we did when we were in school. Nonetheless, the same rules apply.

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