Undercover+Reporting


 * __The Myth of Ethical Deception__**


 * //Exploring the qualms with undercover reporting. Can lies reveal truth?// **

(The original version of this entry was written by ** Ashley Csanady ****)**

Romantic notions of undercover scoops have flitted through my brain for as long as I have wanted to be a journalist. It appealed for a variety of reasons: it’s a literal way to get inside a story, you can gain access that may otherwise be impossible, and it seems impossibly ballsy. The mark of a truly dedicated and fearless reporter lies in a willingness to actually live the job. To give over more than sleep or sanity but one’s day-to-day life and even her identity seemed the noblest call of journalism. Undercover reporting, after all, can reveal the gravest injustices and provide a voice to those unable to speak for themselves, as Nellie Bly’s famous work did for the mentally insane in early twentieth-century America (Smith 2003 p. 289). I felt the ends justified the means. Like police operatives, journalists were afforded a special ethical privilege: the right to deceive in the pursuit of knowledge. But just as police operations are limited by society’s distaste for entrapment, so too is a journalist’s ability to deceive hindered by circumstance. Public trust in the media to report the truth cannot be maintained if journalists fail to tell the truth as they report (Kovach and Rosenstiel, 2007, p.97); however, it wasn’t until I tried my hand at a deception-based story that I understood undercover was no exception to the rule.

Last winter, for my magazine feature-writing class, I had the brilliant idea to spend two weeks in a wheelchair in order to better understand barriers persons with disabilities face on a daily basis. Not only did I rush into the experiment without sufficient research, but I soon realized my deceit would not be as easy as it appeared in the movies. The day I picked up my rental chair, I decided to take it for a spin from the story back to the subway. I had yet to officially start my research, but I thought a little practice could do no harm. I wheeled easily down the wide, smooth side walk, thinking this was much easier than I had anticipated. Then I tried to cross the road. My front wheels slammed into a street-car track and I went lurching forward. My legs reflexively shot out in front of me, just as a kind woman rushed to my assistance. The look of horror on her face made me feel like deceitful scum. I suddenly realized that misrepresenting oneself is never an easy task and even more rarely is it ethical.

**The Problem with Lying**

As Sissela Bok notes in her book //Lying//, almost every religion and society known to man both condemns lying and continues deception. She explores the motivations and justifications behind for lying—which she essentially defines as deceiving someone knowingly and intentionally (1999, pp.13-15)—and finds even the most innocuous of lies serve only to continue a culture that accepts deception. Her approach is not as strictly deontological as Immanuel Kant, but she finds few exceptions for honesty. She laments fields of inquiry that include institutionalized deceit, like police work and journalism, “often have little compunction in using falsehoods to gain the knowledge they seek” (Bok, 1999, p. xxix). For Bok, the approach taken by those who lie fails to considered the ramifications for the deceived. She says offering false information renders decision-makers powerless (1999, pp. 20-21). Even criminals have the right to know whether or not they are speaking to an agent of the police of a journalist. This theory could be extended to the subjects of any undercover investigation: when do sources lose the right to consent to a media interview? If their identities are never revealed, does the deceit become irrelevant? [|Utilitarians] would argue it depends on the context of the deceit, while Bok and Kant would say the duty to tell the truth can rarely if even be trumped (Bok 1999, pp. 47-50). Although the majority of journalists do not think it ethical to lie in the pursuit of a story, there are enough notable exceptions in the form of undercover reporting to warrant further exploration.

**Can deceit be responsible**?

After the landmark //[|Grant v. TorStar]// ruling, journalists can celebrate a new defence against libel in the Canadian courtroom: responsible communication in the public interest. For the purposes of this essay, the discussion of responsible communication will be limited to when is it responsible to deceive a source - not in the sense carried by Janet Malcolm’s 1990 discussion of the parameters of an appropriate journalist-source relationship in //The Journalist and the Murderer// (which is best explored under the heading of transparency with sources) but in terms of full-on undercover reporting, or when a journalist does not reveal herself to her sources. I will not approach this discussion from a legal framework, but instead by first investigating what has been written about undercover reporting and then by creating a framework for judging whether a story warrants subterfuge.

**The perception of deception**

[|A 2002 Poynter Institute study] found that just 54 percent of journalists consider undercover reporting justifiable, down 10 percent from a similar survey conducted in 1992 (Steele). Why so? From a review of the associated literature, it seems fair to blame a rise in covert videotaping and audio-recording within prime-time gotcha-style journalism. As Diane Leenheer Zimmerman writes, “much of the fight over the press in this decade has revolved not so much around the content of its reportage—is it fair, is it true, is it the public's business, is it injurious to national security or the system of justice?—but rather, around the methods used by the press to get its information.” It seems the method and the extremes of the subterfuge affect its perceived value for journalists and the public alike.

Greg Marx explores journalists’ collective disdain for unwarranted subterfuge in his //Columbia Journalism Review// article “[|The Ethics of Undercover Journalism].” He explores a controversy involving an American journalist, James O’Keefe, and two unnamed accomplices who attempted to illegally tap a senator’s phone. O’Keefe first drew notoriety for his exposure of corruption at an ACORN office by using a hidden camera. Marx notes that many dismissed both actions as a result of his political biases, but he says the examples serves to highlight why journalists are “squeamish” about undercover reporting. He notes the rise of shows like //To Catch a Predator// have weakened legitimate undercover operations by employing the tactic to boost ratings and create a story. Skepticism of these tactics dates back to the 1970s, when “the //Chicago Sun-Times// set up an elaborate sting operation at the Mirage Tavern to document routine corruption in city agencies; the sting worked, but the paper’s Pulitzer hopes were dashed” when two of the judges took issue with the reportorial methods employed, according to Marx. He adds, “//PrimeTime Live//’s decision to have producers falsify resumes and smuggle hidden cameras into a Food Lion grocery store sparked contentious litigation (an initial $5.5 million jury verdict against ABC was reduced on appeal to $2) and drew two articles in CJR (not online).”

These attention-grabbing examples may be what gives undercover reporting a bad name. “There are practical reasons for that wariness," Marx writes. "As other observers have noted, while the use of deception in reporting can yield sensational results, it also lends the subject a weapon to wield against the journalist. The ready-made complaint: If the reporter has forfeited the high ground of transparency and honesty, how can his conclusions be trusted by the public?” (2002). This argument helped the plaintiffs from Food Lion win their case against ABC, and Marx warns it could be employed in future cases (2002). Nevertheless, Marx, like many journalists and ethicists, believes there are legitimate exceptions to the “do not deceive” rule that are weakened by salacious ratings and circulation grabs. But there are still more issues with responsible undercover reporting than potential claims of fraud and deception by subjects. Subterfuge that does not meet society’s standards for acceptable deception can further weaken the public’s already waning trust in journalism.

**Deceiving more than sources: the public’s distaste for deceit**

Marx is not alone in noting that “[o]verreliance on sting operations and subterfuge can weaken the public’s trust in the media and compromise journalists’ claim to be truth-tellers.” As Mark Lisheron notes in his 2007 article “[|Lying to Get the Truth]”, which appeared in the American Journalism Review, “editors and reporters are all too aware of the reputation of the mainstream media as part of the problem with the American political process.” His piece analyzes Ken Silverstein, //Harper’s// Washington editor’s decision to go undercover for a 2007 [|story] on foreign lobbyists. Lisheron argues that while Silverstein justified his work as precisely the intricate, detail-oriented and analytical reporting that is lacking from the American political discourse, it is counter-intuitive to suggest that deceiving sources to tell the truth would restore the public’s faith in the fourth estate. The same logic was extended to Canadian journalists by Nick Russell: “The audience will not necessarily appreciate the techniques used or the motivation at work.” (2006, p. 133). Audiences have a right to question deception from those who purport to report the truth.

Bok acknowledges the important national interest behind journalists’ decision to deceive some sources during their investigation of the Watergate scandal in the 1970s, but she stresses that such extreme examples are few and far between. She says that journalists must consider the decision to deceive carefully, on a case-by-case basis that stresses whether there are any other alternatives. Otherwise, as generations of journalists lie too willingly, “[t]he impression gained by the reading public is that much standards are taken for granted among journalists. The results, therefore, are severe, both in terms of risks to the personal professional standards of those directly involved, the public view of the profession, and to many within it or about to enter it.” For Bok, the justifications for lying are few and far between; even when they do exist, they need to be carefully weighed against journalists’ duty to tell the truth.

**Deceive others as you yourself would want to be deceived**

The damage to professional standards and the public perception are the most obvious, but they are not the only arguments against undercover deception. Bok suggests approaching all lies in the same manner as physical violence, by following the Golden Rule: treat others as you would want them to treat you. She argues before lying, one should always place herself in the shoes of the deceived. In turn, journalists should ask themselves, “How would I feel if were the subject of my story?” before going undercover. As Russell explains, journalists must first determine whether any potential harm caused by their deceit outweighs the potential benefits of the story. For him, when a food reviewer hides her identity, “nobody suffers from the duplicity, whereas the audience might well get a distorted view of the restaurant if the technique were not used” (2006, p.133). Reporters must first exhaust traditional methods before moving to the clandestine, but they also must be willing to make their methods known to the greater public. “This test indicates clearly to the audience (and to oneself) that journalists do not have special privileges or rights,” according to Russell. Being fair in one’s methods is about more than contacting both sides of the story, it is about researching responsibly from beginning to end.

Additionally, as Zimmerman argues, distaste is not in and of itself a justification for squashing a story researched undercover. Sometimes public figures warrant more scrutiny than private individuals—but as Marx cautions, even public officials have the right to privacy under the law, so journalists cannot justify illegally tapping a phone just because it belongs to the prime minister. However, sometimes an injustice is so gross that the public’s disdain for the deceived outweighs their anger at her deceit. Russell cites an example from the Nashville //Tennessean//, where reporter Jerry Thompson masqueraded as a member of a local chapter of the Ku Klux Klan. His exposure of the white supremacy group’s growth was well-justified, as he could not have published the story without infiltrating the group. Nevertheless, just because their views are abhorrent, did the KKK members deserve to be deceived? Should Thompson have informed them before printing the story? What precautions did he take to ensure that, regardless of their bigotry, the members’ identities remained anonymous? The line between acceptable and unacceptable undercover reporting is fine. In the next section, I hope to synthesize several guidelines for undercover reporting in order to create a framework for determining acceptable instances for going undercover.  **Acceptable deceit?**

Although most journalism ethicists and codes of professional conduct caution against undercover reporting, they also nearly universally allow for the occasional lie (Russell, 2006; Smith, 2002; Society of Professional Journalists, 1996; Canadian Association of Journalists, 2002; Kovach and Rosenstiel, 2007). When and how often such techniques are warranted is still up for debate. As Smith previously mentioned, the debate has swirled around undercover reporting for over 30 years. His 2003 book states that broadcast journalists (in the U.S.) were the biggest supporters of subterfuge, with 70 percent “approving of its use when the story warrants” (p.282). However, he adds “The public doesn’t agree with them. According to polls by the Radio-Television News Directors Association, about 66 percent say they would like to see hidden cameras and microphones banned” (2003, p. 282). How, then, can journalists reconcile the occasional need to go undercover with the public distaste for deception? There’s no easy answer, and perhaps the best suggestion is to gauge whether the story is important enough to withstand the ensuing public fury. As Russell writes, “The journalist wanting to go undercover must first demonstrate to his supervisors that the story is important enough to the community to risk the community’s wrath at the methods used, and that all traditional, socially acceptable methods of investigation have been exhausted before resorting to the clandestine” (2006, p.133). He adds that regardless of how worthy the story, audiences do not always see the value, citing an example of a woman who lived as a bag lady for 52 days, only to be chastised by readers for exploiting the homeless. Similarly, Jan Wong’s “[|Maid for Month]” series in //The Globe and Mail// was criticized for "classism" and deriding persons of lower economic status (Gabriele, 2009).

Yet, Wong’s series highlighted an important injustice in Canadian society: that many maids work for services that pay them less than minimum wage, and even if they were making minimum wage, it is still nearly impossible to make ends meet. While an entire essay could be devoted to discussing the merits of this one case, Wong’s deceit highlights how controversial subterfuge can be, even if the story is in the public interest. In her case, the inclusion of salacious details suggested sensationalism. When, in fact, the real story was in the numbers she so judiciously researched. This just goes to show that, as Russell notes, even if a reporter is comfortable justifying her means to her audience, it does not mean they agree the ends are sufficient. Perhaps the best method would be to use these special investigative techniques when its deemed necessary, and leave the rest to the court of public opinion.

As Zimmerman writes, “Beyond question, the media uses bad judgment and sometimes indiscriminately wields weapons that squash flies as well as monsters. ‘Investigative’ reportage is often flashy and insubstantial [...] the appropriate approach may be to hold our collective noses and leave the decision about what is fair play to work itself out on the field of ethics and public opinion” (2000).

In the same vein, Bob Steele notes, sometimes the reasons for deceitful reporting are as unethical as the lies themselves. He writes that journalists should not engage in deceit for any of the following reasons:
 * Winning a prize
 * Beating the competition.
 * Getting the story with less expense of time and resources.
 * Doing it because "others already did it."
 * The subjects of the story are themselves unethical (1995).

How may a journalist determine whether a story warrants deception, or whether undercover methods are likely to be more detrimental to the craft than valuable?

The [|Canadian Association of Journalists] (CAJ) addresses undercover reporting it not as a matter of deceit, but as one of many special investigative techniques. The CAJ's [|guidelines] on investigative reporting (2002) state:

"We will be transparent in our actions, especially where our stories are controversial, have far-reaching impact, or require special techniques. Special investigative methods will be used only if:
 * The information is important for the public
 * There is no other way to obtain the information
 * Any harm to individuals or organizations is out-weighed by the benefits of making the information public
 * We are able to plan the investigation carefully." (2002)

Somewhat similarly, in their seminal book on quality in journalism, Bill Kovach and Tom Rosenstiel, propose a test for citizens and journalists alike to evaluate whether a story warrants “journalists’ use of masquerade [...] There are three steps in this test:

// (1) The information must be sufficiently vital to the public interest to justify deception //

// (2) Journalists should not engage in masquerade unless there is no other way to get the story. //

//(3) Journalists should reveal to their audience whenever they mislead sources to get information, and should explain their reasons for doing so, including why the story justifies the deception and why this is the only way to get the facts”// (2007, 98).

This test deserves two qualifiers drawn from the CAJ guidelines above, and from Bob Steele’s [|checklist] for appropriate deceit from 1995:

// (4) Journalists must way the potential harm caused by their deceit witht eh perceived benefits. Does the story warrant deception? Will it be fair to the deceived? Just because someone is unethical does not mean they warrant unethical treatment. Criminality is not an open call for trickery. Even criminals have rights. //

// (5) Undercover reporting should only be conducted after traditional reporting methods are exhausted and if the story needs the information. Additional colour, narrative or sensationalism are not acceptable motives for masquerade. //

**Maybe next time**

It is essential for journalists, especially young journalists like myself who might be swayed by false notions of undercover reporting’s value, to consider the implications of lying to sources. Regardless of whether the deceit is conducted in the pursuit of truth, it is still morally wrong--especially so if done without careful consideration (Bok 120-121). “The absence of such reflection may well result in countless young reporters unthinkingly adopting some of these methods,” writes Bok (1999, p.121). And I think it was precisely this absence of reflection that led to my folly last winter. Not only did I violate the fourth principle of my test by failing to conduct sufficient research before going undercover, it is quite likely I could have gotten the story, and possibly and even a better version of it, through observation and interview alone. There was no need to deceive the countless strangers who helped me. Even if I had sought the experience of navigating the city in a wheelchair, I could have do so transparently, by explaining myself to anyone who helped me or only going out with assistance. As Bok writes, “Trust and integrity are precious resources, easily squandered, hard to regain. They can thrive only on a foundation of respect for veracity” (1999, 249). As journalists, we are first and foremost truth-tellers. We must not engage in deceit unless absolutely necessary.

Under the old adage “never say never,” I cannot say I will never deceive in pursuit of a story again. Instead, next time I consider "going undercover," I will question my motives first and then contemplate whether the story warrants the lie. My intentions may have been good, but I believe I was subconsciously motivated by points three and four. The five-step test provided earlier in this paper offers a simple evaluation for whether a story warrants deception, but reporters must also look inward and ask themselves why they feel the need to lie. If any of the above number among their reasons, they should likely reconsider. Maybe next time, I will do it right—both in my intent and my execution.