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The Roe Leak: Of Trust and Promises

photograph of manilla envelopewith "Top Secret" stamped on it

There is plenty to be said about the leak that brought us the news that the Supreme Court was considering overturning Roe vs. Wade, the case that legalized abortion throughout America. The most important issue is that, if this draft becomes law, many people will be forced to either give birth when they do not want to (and giving birth in America is dangerous compared to other wealthy countries, especially for women of color), or they will have to seek an illegal abortion. Not to mention that banning abortion does not decrease the number of abortions, it just makes them more dangerous (because they are illicit and less well-regulated).

My focus here is not on that issue, it is on the comparatively unimportant issue of whether whomever leaked the draft should have done so – though I won’t find an answer, I will explore what sorts of factors might help decide this. (Matt Pearce in the LA Times does an excellent job of explaining the various competing factors; there is no way that I could cover everything in this short article, and I will inevitably omit important factors.)

The leak itself has caused an outcry. SCOTUS Blog described the leak as “the gravest, most unforgivable sin.” (This might be a bit strong, considering the Supreme Court has previously ruled that slaves had no rights and Japanese-Americans could be interred in concentration camps.) The leak has also been described as an “actual insurrection” (seemingly by somebody who does not know what words mean) and as an obvious attempt to “intimidate.”

Others have offered more measured, reasonable, criticism. John Roberts, the Chief Justice, said that this leak was a “betrayal of the confidences of the Court [that] was intended to undermine the integrity of our operations.” He also noted that there was a “tradition” of “respecting the confidentiality” of such drafts, calling the leak a “breach of trust” that was an “affront” to the court. (It’s worth pointing out that leaking court opinions is not illegal – no law forbids leaking itself.) I want to suggest that even if everything Roberts has said is true, the leaker still might have been right to leak the draft.

Here is one starting point to get to Roberts’s position. Clerks apparently promise the court confidentiality, and to break a promise is itself wrong. After all, this is a reasonable promise to expect clerks to make (and this following consideration applies to judges, too): deliberating in an open way, where you can communicate trustfully with your colleagues, in theory helps to ensure open, fruitful conversation. (If a justice leaked the draft, they might not have made a promise, but the reasons to ensure open discussions apply to them.)

How exactly promises work is a topic of debate amongst philosophers, but one illuminating approach is offered by the recently deceased Joseph Raz that draws on the notion of “exclusionary reasons.”

As Raz sees it, what we should do is determined by what reasons we have. Ordinary (first-order) reasons help us decide what is best: if eating the cake will give me the nutrition required, and I want to eat it, then I should eat it if no reason exists against eating it. Now, if there is a reason not to eat it, for instance I have already had one portion and I don’t want to offend my hosts, then perhaps I shouldn’t eat it. Whether I should eat it depends on how these reasons weigh up: is it more important that I get the necessary nutrition and do what I want, or that I avoid any risk of offending my host. Promises are not like that: if I promised my wife I would only have one slice of cake, then the facts that I want it and it supplies nutrition, do not count. The promise excludes the countervailing considerations.

So, if there was a promise not to leak, then even if there are reasons to leak, perhaps one should not.

Yet even if the leak would breach a promise and constitute a betrayal, this might be the right thing to do. If a friend tells you that they are cheating on their partner, you might betray your friend’s trust by informing that partner – and trust amongst friends is important –  but tell that partner might still be the right thing to do: your friend’s partner does not deserve to be treated like this, and that might outweigh the fact that you promised your friend you wouldn’t tell.

Here are two explanations for why this might be okay. If your friend had said “I have a secret, promise me you won’t tell anybody?” you might think they are, say, planning a surprise party for a friend or thinking about a career change. You might reasonably think your promise has a certain scope, restricted to trivial things. If your friend had confessed to being a notorious murderer, you wouldn’t reasonably be expected to keep that promise, nor need you keep the promise when he tells you he has cheated on his partner. Likewise, in the case of the Supreme Court leak, we have to judge whether the promise to keep things confidential extends this far: does it cover overturning a law that has been settled for five decades, that will affect millions, and which many of the Supreme Court justices (even recently) suggested they would not overturn?

Or, perhaps sometimes it would be wrong to leak (because you promised not to) yet the best thing to do all-round is to leak it. This is a bit like the ethical problem of dirty hands: where to ensure the best result, somebody had to do something wrong. It might be that torture is wrong, yet finding out where the bomb is hidden is so important that somebody should do the awful thing and torture the suspect (this example is simplistic: torture is very ineffective). Likewise, perhaps leaking is wrong and damages the court, yet letting Roe vs. Wade be overturned is too dangerous, and somebody should get their hands dirty, do the wrong thing, and leak the draft for the greater good. This would be, in a way, deeply admirable.

The topic is complex, my point here is just that the fact that leaking is wrong, or the fact it betrays an institution, is not enough to get us to the conclusion that it shouldn’t be done. Sometimes – as tough as it may be, as much as it may damage one’s own moral standing or future career – people should betray others.

Sworn to Secrecy: The Ethics of Confidentiality Agreements

close-up photograph of contract with pen laying on "signature" section

On August 31st, President Trump revealed that he is currently “suing various people for violating their confidentiality agreements.” This kind of behavior from the President is unremarkable because it has happens so often. In the highest profile case, President Trump had Stormy Daniels, a woman with whom he was having an adulterous affair, sign a non-disclosure agreement, promising that she would not speak about the nature of their relationship. 

Non-disclosure and confidentiality agreements are common. Employees and members of various organizations are often expected to sign them. One major concern about these kinds of agreements is that they make the moral dimensions of the making and keeping of promises seem as black and white as the writing on the page. Careful reflection on these matters makes it clear that this is not so.

There are some morally defensible reasons for the use of confidentiality agreements. If an employee works in research and development, an employer might have genuine concerns about intellectual theft—an employee could take the ideas developed by one business and bring them to another. Confidentiality agreements may also be important in cases in which employees work in defense and security. Revealing security secrets could threaten many people’s lives. There is also, within limits, some reason to think it is important for members of an organization to be able to have conversations with one another under the assumption that they can speak freely without fear that what they are saying will be reported outside of the group.

There are also many reasons to be quite skeptical about the morality of confidentiality agreements. In practice, it may well be the case that almost all such agreements are coercive. People must make money in order to pay their bills and stay alive, and often signing a confidentiality agreement is a condition of employment. Even in conditions in which employment is not at stake, those who are in a position to sign are often in a vulnerable, subordinate position, which limits the extent to which they behave autonomously when they sign. Promises are not binding if they are coerced.

Moreover, in order for a promise to be binding, at least some degree of informed consent must exist. Morally defensible promises are entered into in good faith. At the point at which they are made, both parties must trust that the other is not omitting important information from the agreement that might change the willingness to sign the document. If it becomes clear that the nature of the relationship is not what it originally appeared to be, that impacts the degree to which the person that signed it is morally obligated to follow it.

The existence of a confidentiality agreement may be morally relevant to the evaluation of what should be done in any particular case, but it is not morally dispositive. For example, the fact that a person signed an agreement provides them, on the face of it (if the decision was un-coerced), with some reason for compliance. Depending on the circumstances of the case, however, it may not provide them with an all things considered reason for compliance. Other moral considerations might easily and often outweigh the obligation to comply with a confidentiality agreement. A person might come to realize that the values of the institution or individual involved are not commensurate with their own values and dedication to upright moral character. The promises a person makes in a confidentiality agreement may turn out, in the fullness of time, to be inconsistent with other important commitments they have made. Or it may be the case that the harms being caused by the institution or individual are so severe that speaking out becomes obligatory, even if that requires violating a confidentiality agreement.

Under certain conditions, signing one of these agreements makes the person who signed it vulnerable to lawsuits if they violate it. This isn’t a moral fact; it’s a legal fact. Often, lawsuits against people who have violated confidentiality agreements add insult to injury, especially if the violation was a form of whistleblowing. 

These agreements may also lead to a diminished sense of personal responsibility, at least in cases in which neither security nor research and development are involved. If you think that it would be bad for you if others find out the things say or do, perhaps you should put a little more care into what you say and do. For example, President Trump’s personal assistant, Madeleine Westerhout tendered her resignation after revealing to a reporter that the president doesn’t like to have pictures taken with his daughter Tiffany because he perceives her as overweight. The president tweeted that Westerhout “has a fully enforceable confidentiality agreement.” We can’t confirm or disconfirm whether what Westerhout said was true. If it is true, then perhaps the problem isn’t the violation of confidentiality; perhaps it is criticizing your own daughter’s body in front of your subordinate employees. Confidentiality agreements often create hotbeds of abusive and otherwise unethical behavior. It is allowed to go on unchecked because people are scared to speak up out of fear of being sued. 

One of the most significant problems with confidentiality agreements is that they encourage the confusion of ethics with compliance. It is possible, and even common, to be very well-versed in exactly what constitutes compliance for a given organization, but to know little to nothing about ethics. Compliance masquerading as ethics substitutes a shallow proceduralism in the place of substantive moral reflection. After all, rules shouldn’t be followed if the rules themselves are unethical.

Opinion: Non-Disclosure Agreements and the Ethics of Paying for Silence

An image of Stormy Daniels speaking at a conference

Lately we’ve been hearing a lot about hush money. A week before the 2016 election, Stormy Daniels, a porn actress, was paid to be silent about an affair she may or may not have had with Donald Trump in 2006, shortly after his wife Melania gave birth to their son Barron.

Non-disclosure agreements (NDAs) have also been in the news because they have been used by Harvey Weinstein and others to buy the silence of women they allegedly harassed or assaulted. And in the last few months, it’s also become public knowledge that this legal device has been used to insulate members of Congress from scrutiny after allegations of harassment.

Buying the silence of an accuser is evidently common practice and legally above board. It’s surprising, then, that it’s a misdeed or even a crime—the crime of blackmail—for an accuser to aggressively sell their silence. “I’ll pay you to keep my behavior a secret” is fine if Trump said it. But “I won’t keep your behavior a secret unless you pay me” is unacceptable if Stormy Daniels said it.

Continue reading “Opinion: Non-Disclosure Agreements and the Ethics of Paying for Silence”