C.1 Introduction
As the material in this book explains, undercover investigations using investigative deception and nonconsensual recording have been an important part of the ecosphere of information gathering, speech production, and communication in the United States for well over a hundred years. These investigations continue to be an effective means of promoting transparency and exposing unlawful and otherwise objectionable conduct by powerful actors and institutions. And as our empirical research has shown, undercover investigations enjoy broad public support in nearly all political contexts and across a diverse range of demographic groups.
At the same time, at least in some contexts, undercover work has also become increasingly controversial as the targets of certain investigations seek public condemnation and legal remedies against investigators. As we write this book, we are at an interesting moment in the history of undercover investigations. Targets of investigations and their allies are gaining momentum in their efforts to prohibit or at least to limit and deter these investigative tactics, and policy makers and the courts are increasingly called on to address the related legal and policy implications. Even outside of government actors, moral philosophers and professional ethics experts will likely always disagree about the permissibility of undercover investigations.
In some areas, such as law enforcement operations, civil rights testing, and union salting, while the investigations are by no means universally accepted, their legality and ongoing legitimacy will probably remain unchanged.Footnote 1 In other areas, such as undercover investigations by journalists and political activists, there will likely continue to be legal battles over their legitimacy. States continue to pass ag-gag laws to limit investigations on factory farms. Some states and provinces in Canada appear open to a broad range of recording or access bans that will greatly curtail investigations in all fields. And increasingly, there is litigation against right-wing investigative entities such as those seeking to expose misconduct in abortion facilities, and those investigating left-leaning groups. In public statements, the targets of these investigations tend to emphasize that the right-leaning investigators are mischaracterizing what they observed or unfairly editing the footage. But interestingly, the litigation challenging these investigations almost never includes defamation claims, which indicates that the primary concerns relate to privacy-type intrusions, and not false revelations or deceptive editing.
For example, as we have touched on in previous chapters, recent developments in these actions for civil liability against undercover investigators seem to suggest a trend toward punishing such investigators through sizable damage awards. As we discussed previously, the Ninth Circuit recently affirmed a $2.425 million verdict against the Center for Medical Progress and its agents for conducting undercover investigations of reproductive freedom organizations.Footnote 2 Though CMP may seek Supreme Court review of that decision, this level of financial exposure could certainly deter undercover investigators of all types and from all ideological perspectives across the country from carrying out investigations.
Similarly, as we discussed in Chapter 2, Democracy Partners, an umbrella group of left-leaning political consulting firms, successfully sued the conservative group Project Veritas after the latter conducted an extensive undercover investigation, and was awarded $120,000 in damages. The Project Veritas operation involved one of its representatives using a false identity and making a $20,000 donation to one of the consulting firms, helping to secure an internship for another Veritas representative posing as his niece. The “niece,” also using a false name and background, then secretly recorded two consultants who worked with Democracy Partners making statements that suggested some unethical campaign tactics, such as pursuing strategies to provoke violence at Republican rallies. Project Veritas published a series of stories including the undercover videos that documented these conversations, allegedly causing Democracy Partners to lose some of its contracts.
The Democracy Partners suit was not for defamation (because the videos apparently depicted these conversations accurately) but for privacy intrusions, unlawful interception of oral communications and fraudulent misrepresentation, and civil conspiracy. The trial judge had earlier dismissed their claims of trespass and breach of fiduciary duty, including the duty of loyalty.Footnote 3 The court issued a $120,000 judgment against Veritas for their investigative tactics.Footnote 4
Shortly after the verdict, the Washington Post ran a featured opinion piece celebrating the judgment against Veritas. The author was Erik Wemple, the Post’s media critic, who claimed that the verdict “upends” the claim that undercover investigations are “old fashioned journalism,” and comes very close to categorically condemning undercover investigations.Footnote 5 Wemple tells readers that media is “falling out of love with undercover tactics,” and creates an image of undercover investigations as disfavored, and of investigations predicated on misrepresentations as particularly unseemly and out of fashion. Investigations that use lies are characterized as presumptively suspect, or unjournalistic. Under this telling, it as though lies have become the insuperable line when it comes to journalistic ethics, a transgression that is almost unforgivable. Such a framing of lies by media critics like Wemple is at odds with public sentiment, as our research in prior chapters shows, and if the position were enshrined in law it would support governmental efforts to make many undercover investigations a crime.
Indeed, as we write this chapter, the state of Iowa has once again appealed a lower court judgment invalidating one of its many iterations of an ag-gag law that criminalizes access gained by deception. Legal challenges to laws in Arkansas and North Carolina that allowed civil tort claims to be brought against undercover investigators are still pending.
We have argued throughout this book that such a cramped approach to undercover investigations is bad for transparency, and by no means required by the law. As we have contended, we believe that the First Amendment to the US Constitution in many cases should protect the activities of undercover investigators across a range of contexts because the tactics they engage in are critical to the promotion of transparency and free expression. They lead to the revelation of information that promotes democratic self-governance, facilitates the search for many different types of truth, and advances the autonomy of those who engage in such investigations. As we have outlined, only in cases where the government can identify a tangible, compelling interest in preventing such activity should the state be able to punish or prohibit undercover investigations. And the prevention of de minimis, technical legal harms should not suffice to overcome such freedoms if they lead to neither tangible nor material harms to the targets of such investigations. Nor should the law recognize the self-inflicted harms that such targets suffer when the public learns of their misconduct as a reason to shut down undercover investigations.
C.2 What to Expect Next
C.2.1 Continuing Developments in First Amendment Doctrine
We cannot with great confidence predict the direction that the law governing undercover investigations will turn. It is certainly foreseeable that the US Supreme Court will further clarify the meaning and scope of its decision in United States v. Alvarez, in which it first recognized that the First Amendment prohibits the state from punishing lies unless those mistruths cause a legally cognizable harm.Footnote 6 That may come in the context of a challenge to criminal or civil sanctions against undercover investigators, but it may arise in a different context. In either case, the Court will likely need to clarify what counts as a “legally cognizable harm,” which serves as the legal standard for differentiating lies that are covered by the First Amendment and those that are not. Should that phrase encompass any technical legal violations of the common law, even if that harm is not recognized under all states’ laws? Even if it includes all technical legal harms, may the state intervene to regulate activity if those harms do not lead to any meaningful, actual financial harm to the victim?
As we have already elaborated in Chapter 3, a broad reading of Alvarez’s harm requirement could lead to an unprecedented amount of state power to regulate an incredibly broad swath of human interactions, such as artificially puffing up one’s own enthusiasm to work for an employer or lying to a friend to get a dinner invitation. And, of course, lower courts may continue to issue post-Alvarez decisions to clarify the scope of the First Amendment right to lie, both in and outside the context of undercover investigations.
In addition, the Supreme Court and other courts may continue to develop First Amendment doctrine as it pertains to the right to record, to produce speech by electronic media. Although several of the Court’s other precedents certainly provide a solid doctrinal foundation for the right to record, the Court has thus far been reluctant to tackle that issue even in the context of video recordings of police officers carrying out their duties in public. A large consensus of lower federal courts has recognized such a right, which could be one reason that the Court has not taken this up. It seems that a decision about public recordings would be the likely first step, but perhaps later the Court would accept a case dealing with nonconsensual recording on private property, a tactic common to many undercover investigations.
C.2.2 Prosecuting Investigators
Some jurisdictions have attempted ag-gag–like prosecutions even in the absence of specific targeted statutes. Those who seek to conduct an undercover investigation in a setting where abuse is patent may risk prosecution if they do not report the misconduct to the government within the timeline established by the local authorities. For example, there have been examples in the United States and Canada where overzealous prosecutors brought charges against undercover investigators who exposed horrific abuse on factory farms.Footnote 7 The prosecutors sought to charge the investigators either for engaging in the types of practices that they sought to expose or because the investigators did not take actions to prevent others from engaging in the practices. Although charges were dropped in all of the cases the authors are aware of to date, the approach could certainly chill future investigations that are focused on exposing long-term, systemic suffering.
We think that prosecutions in these contexts are inconsistent with encouraging public debate on matters of concern, and tread too close to a policy of punishing the messengers. But we understand the intuitive appeal of requiring that misconduct or abuse be reported immediately. If a person went undercover at a childcare facility or hospital and quickly discovered acts of child abuse or neglect, many would recoil at the idea of an investigator not immediately reporting the abuse and waiting to expose additional abuse against other victims. Perhaps the instinct that delay in these settings is inappropriate would be less clear if the investigation was revealing fraud or financial misconduct or employee mistreatment; perhaps in such circumstances the investigation is viewed as more valuable if it reveals patterns as opposed to discrete acts of harm. For our purposes here, we simply note that when investigations are politically unpopular, there is a risk that prosecutors will seek to bring charges against the investigator who goes undercover. Laws specifically protecting investigations in some (or all) contexts from criminal prosecutions might be a necessary way to balance privacy and protection in this context.
C.2.3 Developments under State Law: The Private Law Conundrum
As we have discussed throughout the book, the key limits on investigations to date have been ethical concerns with investigations and legislation criminalizing undercover investigations. As the Wemple op-ed discussed above suggests, it is possible that major media outlets will become more averse to classic undercover investigations (if they have not already done so), thus limiting the number and potentially the public perception of investigations. In addition, beyond constitutional limits on legislation limiting investigations, future legal developments regarding undercover investigations may not be limited to constitutional doctrine. Even if the Court were to recognize a First Amendment right to engage in investigative deception and a limited First Amendment privilege to engage in nonconsensual video recording, opponents of undercover investigations might then turn to private law mechanisms to ban such speech activities.
C.2.3.1 Contract Law
We have discussed the fact that many undercover investigations are employment based. Most investigators who secure jobs with the targets of their investigations are typically hired into at-will employment positions. Under the common law in most jurisdictions, an employer can fire an at-will employee for any reason, or no reason at all, so long as the basis of the discharge is not one prohibited under statutory law, such as race and gender discrimination. Such positions are typically not the type of jobs that result in formal written employment contracts, but that does not preclude employers from requiring new employees to sign such contracts. And employers could insist on terms under that the employees/investigators agree not to engage in an undercover investigation, perhaps exposing that employee to a lawsuit for breach of contract should they go forward with the investigation. Even short of an employment contract term, employers might require all employees to sign nondisclosure agreements, binding written contracts under which the employees agree not to divulge any information about their employment that is obtained or learned during the course of their employment.Footnote 8 It may be that even such private law mechanisms will not deter investigators from carrying out investigations because many of them might be judgment proof, not having sufficient assets to make it worth the employer’s while to sue them. But such policies could certainly have an impact on how centralized or organized the investigations could be because institutional sponsors of investigations may be exposed to liability. And the harassment value of such litigation could still be a substantial deterrent.
Even in contexts short of employment, it is possible for potential investigative targets to deploy a similar strategy. For example, reproductive choice groups that were targeted for an undercover investigation by CMP have invoked private law methods to suppress undercover investigation methods. Recall that CMP’s agents posed as representatives of legitimate businesses who, among other things, attended conferences to gain access to the reproductive choice groups’ officials, whom they secretly recorded. One of the arguments in their successful litigation against CMP was that the latter’s agents had signed contracts as part of their participation in such conferences under which they agreed that they would not make recordings, disclose recordings, or disclose any information received from their participation in the conference. Thus, the reproductive choice groups sued them in part for breach of contract and sought a federal court injunction against CMP’s use of their secretly recorded videos. Their argument was that the CMP’s agents waived any First Amendment rights they may have had when they signed those private nondisclosure agreements. A federal trial court judge issued the requested injunction, and the US Court of Appeals for the Ninth Circuit recently upheld that injunction on the grounds that CMP had indeed waived any First Amendment rights they might have otherwise enjoyed.Footnote 9
C.2.3.2 Tort Law
Another form of private law enforcement that investigative targets might employ is lawsuits under state tort law. Regardless of the existence of a contract, we can imagine that some targets may sue investigators for trespass, invasion of privacy, fraud, or breach of the duty of loyalty. We have already discussed these types of tort claims and cases that have been previously litigated, including the Food Lion case, the Desnick case, the CMP litigation, and the Democracy Partners suit against Project Veritas. While we do not think that the activities of most undercover investigators would violate legal duties under state tort law, that would not necessarily prevent targets from filing lawsuits, or at least threatening to file such lawsuits to shut down investigations. It also does not mean that investigations that extend beyond what we regard as reasonable action might not expose them to substantial tort liability.
In addition to common law tort claims, some states have responded to undercover investigations by creating new statutory tort claims, laws that enable the subjects of such investigations to sue the investigators and their sponsors for money damages. In the context of undercover investigations, at least two states have adopted laws that create such claims.
The North Carolina legislature enacted a new law in 2016 that states: “Any person who intentionally gains access to the nonpublic areas of another’s premises and engages in an act that exceeds the person’s authority to enter those areas is liable to the owner or operator of the premises for any damages sustained.”Footnote 10 Among the acts that count as exceeding the scope of the person’s authority are an employee recording images or sound occurring within an employer’s premises and using the recording to breach the employee’s duty of loyalty to the employer. Thus, unlike other laws targeting undercover investigations, the North Carolina statute targets existing employees, not just those seeking employment or access to property. Moreover, the North Carolina law applies to all industries, not just agricultural ones. If the property owner or operator prevails, it can secure an injunction, compensatory damages, costs and attorneys’ fees, and punitive damages of up to $5,000 for every day that a violation of the law occurs.
In 2017, the Arkansas legislature enacted a similar law, which authorizes the owner or operator of commercial property to sue “any person who knowingly gains access to a nonpublic area of a commercial property and engages in an act that exceeds the person’s authority to enter the nonpublic area.”Footnote 11 The statute goes on to define an act that exceeds a person’s authority as including the owner’s own employees, and prohibits anyone from using information obtained because of their access and allow a suit against any person who “Records images or sound occurring within an employer’s commercial property and use[s] the recording in a manner that damages the employer.” Thus, undercover investigators may be sued for potentially significant amounts of money under this law, which would likely deter such activity. Although not exclusively limited to apply to animal rights investigators, the definition of commercial property under the Arkansas law includes, somewhat redundantly, “Agricultural or timber production operations, including buildings and all outdoor areas that are not open to the public.”Footnote 12 Successful plaintiffs may obtain injunctive relief, compensatory damage, costs and attorneys’ fees, and, even where there are no actual damages, up to $5,000 for every day that a violation of the law occurs. As we discuss below, both of these laws were initially enjoined by federal courts as violating the First Amendment, but a federal judge recently dismissed the lawsuit challenging the Arkansas statute and although the injunction against the North Carolina law was upheld, there may be other ways that state legislatures might craft new laws to avoid future legal challenges.
The issue of state-created legal claims to sue people who are trying to exercise their constitutional rights catapulted to the headlines when Texas enacted S.B. 8, its notorious law outlawing abortions whenever a fetus has a detectable heartbeat, which most experts agreed would be around six weeks into a pregnancy.Footnote 13 This law was enacted well before the US Supreme Court decided Dobbs v. Jackson Women’s Health Organization,Footnote 14 which overruled Roe v. Wade and pronounced that the Constitution does not prohibit states from banning abortions. But Roe’s overruling is not pertinent to the remedies dilemma created by laws like S.B. 8.
What was unique about the Texas abortion law was not only that it did not authorize enforcement by any state official, but it instead placed enforcement exclusively in the hands of private parties.Footnote 15 It authorized lawsuits by “any person” other than a state or local government official to sue any person who “performs or induces an abortion” in violation of the law’s restrictions or who “knowingly engages in conduct that aids or abet the performance or inducement of an abortion,” and authorizes statutory damages in the amount of $10,000 “for each abortion” that the defendant performed or helped facilitate.Footnote 16 It also asymmetrically allowed the prevailing plaintiff to recover costs and attorneys’ fees from the defendants, but not for prevailing defendants to recover from plaintiffs.Footnote 17 Texas lawmakers clearly designed the law to avoid the traditional methods of constitutional enforcement. Typically, when a state enacts a law that is subject to constitutional challenge, plaintiffs may file suit in federal court to stop the state official responsible for enforcement of that law from enforcing it.Footnote 18 By placing enforcement in the hands of private actors instead of state officials, Texas created a loophole that allowed it to avoid such a suit.
The problem of whom to sue confronted those who sought to invalidate Texas’s S.B. 8. The plaintiffs brought a constitutional challenge in federal court seeking to bar the law’s enforcement before it went into effect, and named as defendants the Texas Attorney General, a state court judge, a state court clerk, the executive directors of the Texas Medical Board and the Texas Board of Nursing, the Texas Board of Pharmacy, the Texas Health and Human Service Commission, and a private person who had publicly declared his intent to sue under the new law. The Supreme Court took the unusual step of granting certiorari before judgment to evaluate this legal challenge. In Whole Woman’s Health v. Jackson,Footnote 19 the Court issued a narrow ruling allowing the suit to proceed only against the four executive directors of the state agencies, whom the Court believed had the power to discipline or otherwise take disciplinary action against actors under their jurisdiction for violating S.B. 8’s limitations on abortion.Footnote 20 Later in the same litigation, however, the Texas Supreme Court ruled as a matter of state law that those four officials did not, in fact, have the power to issue sanctions against those who violated S.B. 8, ending the lawsuit and leaving S.B. 8 intact.Footnote 21
The US Supreme Court found the suit to be improper with respect to all other defendants. With respect to the Attorney General, it held that although Ex parte Young authorizes suits to enjoin state officials from enforcing unconstitutional laws, the Attorney General had no enforcement authority under S.B. 8, and therefore could not be sued.Footnote 22 The Court also held that the suits against the state judge and state court clerk were impermissible because the Court interpreted Ex parte Young to categorically prohibit injunctions against state judges.Footnote 23 The Court also found that the suits against the judge and clerk could not proceed for a second, independent reason – they were not suitably adverse parties to the plaintiffs and plaintiffs therefore did not have Article III standing to sue them.Footnote 24
Turning back to laws that impede undercover investigations, one might ask why similar impediments did not block those suits from going forward. One might reasonably ask, Why does (or might) the Constitution protect people from criminal laws enforced by the state, but not from private law claims that similarly burden their rights? That is, S.B. 8 raised similar (though not identical) questions to the ones relating to laws creating tort claims against undercover investigators. Why, then, does the First Amendment protect undercover investigators from criminal prosecution, but not from a state private law claim? There actually seem to be at least two distinct potential hurdles in suing private parties to enjoin them from suing under state-created tort laws that burden others’ constitutional rights: the state action doctrine and the doctrine of standing.
The state action doctrine is a constitutional principle that limits constitutional rights to protect us from the actions of the government, not from private actors, who are generally not bound by the Constitution. For example, a public school could not fire a teacher for engaging in political speech during their own free time away from campus, because that would violate the First Amendment. A private school could fire a teacher for such activity if it chose to, absent any other legal or contractual protection for that conduct. In the North Carolina litigation, this was not a central issue because the plaintiffs sued the Chancellor of the University of North Carolina and the state’s Attorney General on the grounds that some plaintiffs had previously investigated animal testing laboratories at the university, and that their future efforts to do so would subject them to a tort claim under the law by state officials. Though it was not directly addressing a state action issue, the Fourth Circuit found that there was a sufficient threat of such enforcement that the case could proceed.Footnote 25 On remand, the federal district court granted partial summary judgment to the plaintiffs and invalidated much of the North Carolina law. In doing so, it found that the law involved state action in two ways. First, the court noted that “while the Act operates in the private sphere, it is state action to the extent the State has identified speech (or in some cases, conduct which can include speech) it wishes to allow to be proscribed and has empowered private parties to enforce the prohibition.”Footnote 26 Second, as already discussed, the plaintiffs specifically targeted a state entity that would have to use state actors to enforce the law.Footnote 27
As with S.B. 8, the Arkansas law does not provide for enforcement by a state official. There, animal rights and labor groups sued to challenge the Arkansas law, naming as defendants the owners of two of the largest commercial poultry and pig farms in the state, one of whom was also a member of the Arkansas legislature who sponsored the law. Although the defendants raised state action issues in the trial court, the court never reached those issues because it dismissed the case for lack of standing, which was later reversed by the Eighth Circuit and remanded back to the trial court. Recently, however, the trial court did dismiss the case on the basis that there was no state action.Footnote 28
But there are at least two things that could count as state action in these circumstances, even where there is no state official who can bring a claim. First, the very enactment of a law that targets free speech, albeit one that hands over enforcement to private actor, is itself state action that violates the Constitution. Second, even when there are no government parties to a private contract or tort lawsuit, the case is still adjudicated by a state court, which hears the case, rules, and enforces the judgment. The Court has recognized the latter as sufficient state action in a couple of different circumstances. For example, in Shelley v. Kraemer,Footnote 29 the Supreme Court held that the state courts’ enforcement of racially restrictive covenants in real estate sales contracts constituted state action even though the private contracts themselves did not violate the Fourteenth Amendment. The Court acknowledged that “[i]t has been recognized that the action of state courts in enforcing a substantive common-law rule formulated by those courts, may result in the denial of rights guaranteed by the Fourteenth Amendment, even though the judicial proceedings in such cases may have been in complete accord with the most rigorous conceptions of procedural due process.”Footnote 30 Under Shelley, although the plaintiffs were trying to enforce covenants attached to private real estate sales, the Court recognized that by enforcing those covenants, the state courts were effectively facilitating racial discrimination against those who refused to heed the covenants’ racial restrictions. Similarly, in New York Times v. Sullivan, the Court held that even though the Constitution is limited to constraining state action, where a “state rule of law … impose[s] invalid restrictions on [plaintiffs’] constitutional freedoms of speech and press,” the existence of the law itself is sufficient “state action” to raise First Amendment concern.Footnote 31
In addition to the state action question, plaintiffs seeking to challenge a state law that creates a solely private enforcement mechanism must have Article III standing to challenge the law. The doctrine of standing is a limitation on the powers of federal courts to adjudicate disputes unless the plaintiff has a personal stake in the outcome of the case. Generally, under Article III, a plaintiff can establish standing only if it can be shown that the plaintiff has suffered an injury in fact that is fairly traceable to the defendant’s conduct and for which a court could provide a meaningful remedy.Footnote 32 With respect to the standing issue, the challenge for the plaintiff is to find the party responsible for the cause of their injury. One can imagine that there might be generalized threats by private citizens to sue anyone who violates the state law, thus presenting a potential harm that would allow the investigators to sue for an injunction. Plaintiffs must show that there is a reasonable threat that they will be sued, but defendants will quite likely argue in such cases that they have no intent to sue the plaintiffs under the state law and that there is therefore not threat of such enforcement.
But in both the North Carolina and Arkansas cases, two different federal courts of appeals rejected such arguments and found that the plaintiffs had standing. In both cases, the courts found that because the plaintiffs had conducted such investigations in the past and had present intentions and capabilities to do so again, they were under sufficient threat of enforcement that they had standing to proceed with the litigation. Although the defendants in both cases argued that the plaintiffs’ alleged harm was too speculative, the courts disagreed. As the Eighth Circuit held, “A formal threat, however, is not required to establish an injury in fact. The question is whether the plaintiffs have an objectively reasonable fear of legal action that chills their speech.”Footnote 33
A full exposition of these questions of federal courts law is beyond the scope of this book, but we raise these issues here to acknowledge that we might see developments in the law here that affect the future of undercover investigations.
C.2.4 Political Developments
Constitutional law is not the only possible source for the protection of undercover investigators. It is at least possible that in some jurisdictions, we might see the future political will of state legislatures to codify some protection for such investigations (or to limit investigations where the Constitution permits it). States can protect speech even if is not protected by the First Amendment. For example, today thirty-nine states have enacted shield laws protecting journalists from having to reveal confidential sourcesFootnote 34 even though the Supreme Court declared that there is no First Amendment exemption for journalists from having to testify under subpoena.Footnote 35
We cannot predict the likelihood of such legislation. However, given our research showing that undercover investigations enjoy widespread, bipartisan support, Congress would seem to have a strong basis for considering broad legislation protecting undercover investigations across the country, and some states could do so as well.
C.3 Some Standards and Guidance for the Future
Without regard to constitutional or other legal limitations, those who choose to conduct undercover investigations may find themselves subject to a plethora of criticisms about the ethics or legitimacy of their behavior. We think it is worth considering the adoption of a set of best practices to guide those who conduct undercover investigations. While not necessarily insulating such investigators from legal claims, following good practices may at least help in terms of achieving both professional and public acceptance. Following such practices may also help investigators demonstrate good faith attempts to limit potential harms or abuses that might flow from an investigation. We offer the following as one potential approach to a statement of best practices.
Best Practices for Conducting Undercover Investigations
1. Before conducting an undercover investigation, investigators and their sponsors must have some specific evidence that their investigation will reveal misconduct, illegality, or wrongdoing on the part of investigation’s target. Undercover investigations should be conducted only to gather information that is of a public concern.
2. If the information sought, in terms of both quantity and quality, is readily available and easily obtained through other sources, those sources should be used first. But to the extent an undercover investigation can provide more detailed evidence of the misconduct, it is permissible to conduct an investigation to supplement and corroborate other fact-finding techniques.
3. It is permissible to use deception, including deception by omission or affirmative misrepresentation, about the investigator’s identity, political affiliations, and motivations for gaining access to the investigation site. Such deception may not be used for any other purpose than gaining access to an investigation site, conducting an investigation, and remaining undercover. When conducting employment-based investigations, the investigator should not exaggerate or inflate their credentials; only lies that omit affiliations, understate qualifications, or conceal one’s identity should be tolerated. And investigators must be able to competently perform their assigned job functions.
4. Any still photography, audio recording, or video recording must be reproduced truthfully in reports to the public. No alterations or editing to mislead the listener or viewer are permissible. Editing for brevity, coherence, and to protect the privacy interests of the individuals recorded is permissible. But any editing that is reasonably likely to mislead or misrepresent is not permissible.
5. Investigators must not cause physical harm, theft (including intellectual property), or other harms to the property of the investigation’s target or to any person on the premises during the investigation. The investigator should not induce, solicit, or entrap others to engage in misconduct or actively celebrate or engage in misconduct themselves. However, investigators need not report misconduct to government officials immediately if doing so would compromise the success of the investigation.
6. Investigators must not deprive individuals who are associated with the investigation site of their dignity, privacy, or autonomy unless that is the direct result of those individuals’ participation in the suspected misconduct being investigated. Investigations targeting highly vulnerable individuals are discouraged. Undercover investigations in which investigators gain access to commercial properties are preferable to investigations that involve access to private homes or spaces, but the latter are acceptable if the information sought is of a public concern and investigators limit their investigation only to that information.
* * *
In this book, we have attempted to provide a comprehensive account of the state of undercover investigations in the United States as we approach the end of the first quarter of the twenty-first century. We anticipate that such investigations, after having endured for over a hundred years, will continue to be part of the information and speech landscape in the next generation, and probably beyond. New technologies, such as data scraping software, may even expand the scope of what types of undercover investigations are even possible. The ubiquity of high-quality video recording devices is likely to enhance the possibilities of undercover work to even greater levels. Given that such investigations are most likely here to stay, it is important to flesh out the constitutional, legal, ethical, social, and political ramifications of undercover investigations, as well as to understand what conditions make them more likely to occur and more likely to be successful.
We don’t think that undercover investigations alone are likely to catalyze social change. But we think that the revelation of otherwise secreted facts on matters of public concern will often be a necessary element of efforts by emerging social movements to challenge the status quo. Facts, as Hannah Arendt recognized, have a stubbornness that makes them difficult to argue with, and thus undercover investigations will often serve an important role in promoting transparent, public debate of the sort that is and should be celebrated in democracies.
