The Ethics of Investigations: Real and Fictional

Privacy issues seem often to be in the forefront of the news these days, especially following the leaking of National Security Agency documents by Edward Snowden, and the subsequent revelation in the media of the NSA’s phone surveillance program. People on both sides of this country’s political divide (and people around the world) have, understandably, reacted to these disclosures of what appears to be a governmental intrusion on privacy with alarm.

It isn’t only the government, of course, that has people worried when it comes to privacy. Other concerns have emanated from the growing awareness of social media users that the information they provide on such sites is being banked and sold, along with information about each user’s Internet browsing history, by companies seeking to market products. The resulting profiles have been shown to include a person’s sexual orientation, political opinions, and medical history—it’s hard to imagine a greater erosion of the concept of a personal life than these companies are effecting.

And then there’s the realm of private investigation. Cases of illegitimate or unethical snooping on the part of P.I.’s don’t as often make leading news, but there’s plenty going on—and plenty to think about—if you look for the stories. One important issue is GPS tracking. In October of last year a federal appeals court ruled that the police need a warrant to use a GPS tracker on vehicles. But, interestingly, there is no law preventing a private investigator from using the same device. And some private detectives apparently have no scruples about it. The incentive is easy to understand: following someone on a computer sure must beat long stakeouts. There are, however, many private detectives who have spoken out against this practice, reminding us that despite the unsavory reputation some P.I.’s have earned in recent years, the profession has plenty of ethical practitioners.

Long before NSA’s phone-surveillance program was revealed, back in 2008, private eye to the stars Anthony Pellicano was sent to prison for wire fraud, racketeering, and wire-tapping. Among his other breaches of the law, Pellicano had set up a computer program that worked in conjunction with taps in telephone main switchboards to record calls on a large scale. This didn’t seem to raise the kind of alarm NSA’s program has, even though we probably should be concerned that this was so easy for a P.I. to do.

This raises some questions for me about private-eye fiction, and what fans expect of a fictional P.I. I think most readers accept an investigator stepping outside of the law as long as it’s done in pursuit of some kind of justice. In fact, more of the private detectives I encounter in short fiction than not seem to consider a bit of illegal hacking—into DMV records, for instance—not only acceptable but part of the expertise their clients expect them to employ. But the key here really is the purpose for which it’s done. The famous case of Britain’s News of the World scandal involving private investigator Glenn Mulcaire, who was charged, in 2007, with illegally accessing voice messages to aides to the royal family and certain celebrities highlights where I think many readers would draw the line in fiction. It seemed pretty clear that Mulcaire did exactly what he was hired to do, and he took the fall along with an editor from the newspaper. But despite the convictions in that case, it seemed that the public did not consider the offenses of the newspaper or the P.I. very worrying. They were, after all, only invading the privacy of people who live in the public eye and who many believe should have no expectation of privacy. What made many change their minds was that a few years later it was shown that this probing by the private investigators and the newspaper into personal lives had extended to the teenager Milly Dowler, who’d gone missing several years earlier. When it was revealed that The News of the World had hacked into her phone messages and deleted some of them so that they could listen to new ones, the public was revolted.

I think readers of private-eye fiction expect a fictional P.I. to do at least some things a cop on a police force couldn’t—or wouldn’t—do. Some things, in fact, that are not within the law. But balancing this is the equally strong expectation that the P.I. will act in accordance with some kind of code of honor, and that ordinary people—people without power or privilege—won’t become collateral damage (as, in real life, Milly Dowler’s parents were) to whatever objective is being pursued. I wonder, though, what our readers, and especially the private-eye writers in our audience think about this. I know we have some writers who worked as private detectives before turning to fiction writing. It would be interesting to know what they think about the frequency with which real investigators break the law, and also about whether it’s acceptable for them to do so in fiction.

Also, what position ought a real P.I. take to a privacy-invading practice like GPS tracking? And even though private investigators are currently not restrained by law from using GPS trackers, would their use by a fictional P.I. violate the code of honor that’s so essential to the fictional form?—Janet Hutchings

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One Response to The Ethics of Investigations: Real and Fictional

  1. V.S. Kemanis says:

    The Constitution protects us against unreasonable searches by the police and other state agencies. But P.I.’s might be subject to other sorts of legal consequences for invasive surveillance. Private lawsuits for invasion of privacy or criminal prosecution for offenses such as harassment come to mind as possibilities. New York criminalizes eavesdropping by private citizens, but the “unlawful surveillance” crimes on the books are geared more toward “peeping Tom” types of offenses.

    I personally like to read stories about P.I.’s who bend the law while working a case, as long as they keep within the code of honor. In my story “Times Square Tail,” the P.I. didn’t keep to the code. He tailed a subject for his own personal ends, but received his comeuppance when the subject turned out to be an undercover police officer tailing him.

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