SOME CONFIDENTIALITY DILEMMAS

Most people have their smart phone in their pocket at all times. Most smart phones are also recording deviseS. If there’s any chance it’ll be a “he said, she said”, stick your hand in your pocket and press the record button. And if you’re asked to leave the room, so that Asshole 1 can speak privately with Asshole 2, leave the phone on under some papers, and when the meeting’s over just say, “Oh, ‘scuse me, I think I left my phone in here.”

Eventually assholes will catch on, but if they ask you to leave your phone at the door, just keep a spare on you. What’s he going to do? Pat you down? And if he does then you know he’s going to say something he’s later going to deny saying, so just decline to listen to it. Even without any such device, if he starts a sentence with, “Off the record …” just say, “No it’s not.” If he wants to go ahead anyhow it’s on his head.

As far as I know, there are no conditions, neither under criminal law nor under tort, in which one is required to keep a confidence not agreed to beforehand, either explicitly or by voluntarily accepting the position giving one access to confidential information. It is an article of my contract with the university that I will not disclose information about my students. I entered that contract of my own free will. But were I drafted into the army, I would not be under any moral obligation not to reveal secrets to the enemy, nor am I under any moral obligation to disabuse the enlistment officer of his supposition that I am. This is why the Israelis, at least so far, have had the good sense not to draft its Palestinian citizens into the IDF, though Netanyahu has recently been advocating an end to Palestinian immunity from the draft. Presumably saner minds will prevail.

Non-disclosure agreements aren’t worth the paper they’re written on. “So how much was your payout?” “I’m not allowed to say.” “Fair enough. But feel free to blink when I’m getting close.” What holds people to non-disclosure is nothing more than their having given uptake to it. Don’t give it. If it’s something you think shouldn’t be shared then just don’t share it. If you think it should, then do.

This places the would-be whistleblowing in a very difficult position. Most whistleblowers – Edward Snowden among them – have taken an oath of non-disclosure. But can one take an oath not to disclose a criminal offense? Certainly my having promised my buddy I won’t report his sexual interference with a minor will not save me, neither legally nor morally. It’s easy to say, then I shouldn’t make such a promise in the first place. I won’t ask, you won’t tell. But the breaking of a promise is often the sine qua non of putting a stop to a series of serious crimes. Save for specified cases where the public interest in the crime outweighs its interest in the sanctity of marriage, a spouse cannot be forced to testify against a spouse. But then surely the same rationale should apply to close friendships. And to some extent it does. Judges tend to be very lenient with people who refuse to rat out a friend, because that kind of loyalty is often all that stands between us and 1984.

As with virtually the entire corpus of ethics and law, all of these considerata can only seek some imperfect equilibrium. Reasonable people can and do disagree about where that equilibrium lies. Hence the ongoing debate over Snowden. I can see both sides of the issue. On the one hand he did us all yeoman service. On the other, the next set of loose lips might sink some ship on a mission of unquestionable mercy. Even if we suppose, as does Mr. Spock, that “The needs of the many outweigh the needs of the few!”, it’s not at all clear how many lives Snowden saved versus how many the next Snowden might endanger. So principles don’t offer umuch help here.

My own view, for what little it’s worth, is that Edward Snowden be allowed to disappear in plain view into the streets of his home town back in America, and we all pretend we saw him taken down in a blaze of bullets as he stepped onto the tarmac. Mutatis mutandis this is how we solve the mercy killing dilemma. And some people think this is precisely what we did vis a vis bin Laden. Sometimes a little collective delusion can go a long way.

 

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