Chapter Goals

• Define privacy and secrecy
• Define duty of confidentiality
• Understand why it is significant that it is a prima facie duty
• Understand the criteria of being credible, clear, serious, and immanent
• Understand the distinction between mandatory reporting and discretionary reporting
• Understand why discretionary reporting is preferable to mandatory reporting in professional life
• Define whistleblowing
• Define supererogatory action
• Define complicity
• Understand when complicit professionals have a duty of whistleblowing

6.1. Introduction

Control of information about oneself and one’s activities is an important aspect of personal autonomy. Autonomy is reduced when people do not have control over personal information.

The line that separates the private sphere of life from the public sphere is not fixed. It reflects cultural expectations that have changed over time, and which have rapidly changed as more people have been willing to share so much about themselves through social media. Nonetheless, at any given time there are activities and places designated as private, that is, as ones that others have no right to observe or know about. Correspondingly, public activities are distinguished from private activities. A public activity is one that others are not wrong to observe, document, or know about. Someone who goes to a shopping mall wearing a weird outfit (e.g., wearing scuba flippers on their feet, or wearing a ballerina’s tutu skirt around the waist and a football helmet on the head) cannot expect that their fashion sense is a private matter and that their appearance should not be noticed or discussed by others.

Another way of drawing the line between public and private is that the public sphere is anything that government and society have a right to regulate, whereas the private sphere is anything that should not be subject to regulation by others. The dividing line between them is itself a matter of significant public debate and moral disagreement.

For purposes of professional ethics, the core issue is the distinction between public and private information. However, private information should not be confused with secrecy. Information that can be learned easily is public in the sense that many know it, yet that same information may be classified as private in contexts where others should not make use of it even if they do know it. Until the 1960s, it was common for American employers to discriminate against women based on such matters as pregnancy or marital status. Today, most people understand that it is wrong for employers to ask job applicants about these topics, as well as others like ancestry, religion, and sexual preferences. Letting employers ask about irrelevant or marginally relevant matters supported patterns of discrimination against many groups.

Respecting privacy it is not simply a matter of not asking for or seeking information. Information might be regarded as private (off limits and not to be used) even if it’s readily available or could be known with little effort. For example, an accounting firm might be interested in hiring a highly qualified applicant. When the applicant arrives for a job interview, she is visibly well advanced in pregnancy. The pregnancy is not a secret to the people conducting the interview. However, they should proceed as if they do not know about. The pregnancy might mean that the job candidate will want maternity leave soon after being hired, but they should not ask about it and they should not consider it when making a hiring decision. They should treat it as private, that is, as none of their business.

Switching to professional-client relationships, the duty of confidentiality upholds the principle that competent individuals have the right to control their own lives and, consequently, information about themselves. However, professionals need to learn about clients’ goals, wishes, and values. Frequently, this means that they will learn a great deal about their life histories and current activities. To get clients to share information that they might prefer to keep hidden, clients must trust the professional to treat what they learn as a private matter—that is, as secret and not to be shared with others. So, as a practical matter, the consulting professions require professionals to keep secrets about their clients. In practice, this means sharing nothing, or almost nothing, learned or known about clients. And this applies even when the information is otherwise public information. A patient might post on social media that they have been hospitalized with appendicitis, but it would be a violation of confidentiality for the hospital to confirm this to anyone who called to ask why the person was hospitalized. Thus, the duty of confidentiality frequently extends to information that might already be known to many others.

There are two basic arguments to support the importance of confidentiality in professional-client relationships.

First, preserving client confidentiality builds and preserves trust in the professions. The fiduciary relationship requires clients to share enough information to allow the professional to understand the client’s true situation. Often, this requires clients to reduce their privacy: giving a doctor access to their bodies, giving an accountant access to their financial records, or allowing educators to assess what they do and do not know. Professionals sometimes learn things about a client that the client keeps secret from their family and closest friends. Sometimes it is merely information that clients find embarrassing. At worst, professionals need access to information that could cause great harm to a client if others were to learn about it. If professionals can’t keep secrets, clients won’t be honest with them. Clients must feel comfortable to share openly and without fear of judgment or reprisal.

However, there is a second argument in favor of recognizing a duty of confidentiality. This argument is not based on building trust. After all, an appeal to positive consequences can backfire once we tally the negative outcomes. preserving client confidentiality can just as easily create negative attitudes about the professions when the public thinks that confidentiality policies interfere with their right to know something. (See the discussion of the accusation of amorality in Chapter 3, Section 3.1.)

The second argument says that confidentiality is an essential part of respecting client autonomy. Surrendering privacy should not be the price one must pay to meet the basic needs addressed by the professions. The promise of confidentiality is not simply  method for getting clients to open up to professionals. To avoid conflicts of interest, professionals avoid establishing close personal relationships with their clients. (See Chapter 5, Section 5.7.) They probe a clients secrets because they must do so to provide good advice. Therefore, professionals should always regard the client’s information as transactional, as something the client provides only for the restricted purpose of receiving proper advising. In this sense, clients are not freely sharing information, and therefore the professional cannot regard it as public information (which would permit it to be shared with others). It must therefore count as confidential. A related point is that confidentiality permits clients to make decisions in an environment that is free from external influence or coercion. Thus, client autonomy demands confidentiality.

As with other duties, the duty of confidentiality—the duty to keep secrets—is a prima facie duty. It can be cancelled by competing duties. The precise reasons why and when this duty might be cancelled are among the most controversial in the field of professional ethics.

6.2 Sorting out the core concepts

Privacy, confidentiality, and secrecy are closely related concepts. However, they have very distinct meanings and different implications for professional-client interactions.

Privacy is a right that accompanies autonomy. It is the right to control some range of information about oneself and one’s activities. Normally, clients must waive (surrender or withdraw) some privacy rights in order to secure professional services.

Confidentiality is the duty to keep secrets about someone else. As such, confidentiality restricts the behavior of those who have a duty to uphold and foster another person’s autonomy. The medical profession recognized the importance of confidentiality and placed it in the Hippocratic Oath some 2400 years ago.

In professional life, clients reduce their expectation of privacy in return for confidentiality. That is, the client must relax their right to withhold information that they might want to keep secret from others. In return, the profession promises confidentiality and will make a secret of what they know about each client. The client’s right to privacy now extends to the professional, who must now keep the information to themselves.

Privacy rights are negative rights, that is, they tell other people not to interfere. (See Chapter 2, Section 2.3.) Historically, this generally meant that others could not trespass on “private” property. Today, privacy rights have been expanded to mean protection of information by prohibiting surveillance or collection of data. As people conduct more and more of their activities online, the distinction between public and private activity has become much less clear. Thus, privacy can apply to almost any aspect of an individual’s life, including personal communications, financial transactions, medical records, and online activities.

Confidentiality is also a negative duty, for it is a duty not to share information. However, it also implies taking positive steps to safeguard data so that others will not have access to it. Confidentiality is therefore closely aligned with secrecy, which typically involves intentionally withholding information or keeping it hidden from others.

Confidentiality is also closely aligned with professional integrity. The core professions all pledge to treat client information as confidential, and therefore a professional who fails to uphold client confidentiality displays a serious lack of integrity. (See Chapter 3, Section 3.4.)

However, there are significant limits to confidentiality.

Today, most professionals are employees of businesses and non-profit organizations. Many are partners or co-owners of a business. It is therefore important to understand that client confidentiality does not extend to everything that takes place within the professional setting. A law firm may wish to keep it a secret that the Internal Revenue Service has filed a tax lien—a claim on their assets and property—because of unpaid taxes,  but the firm has no right to claim that this a confidential matter. It is not: liens are public information. (See also Section 6.5, on whistleblowing.)

Organizations keep secrets for many reasons, including personal privacy concerns, national security interests, proprietary business strategies, or illegal activities. Secrecy is justified for organizations to the extent that organizations have some of the characteristics of persons. However, there is no strong reason to think that organizations have a right to keep secrets to the same degree that autonomous individuals have a right to privacy. Organizations cannot function unless they share information among various individuals in that organization. The treating physician puts details in the patient’s chart, which is then shared with both the nursing staff and the office that handles insurance billing. Or the accounting department of a large corporations sends reports on profits and trends to management, who in turn share relevant parts of those reports with the people they supervise. Obviously, excessive secrecy can undermine successful operations of organizations. But, likewise, excessive secrecy about an organizations operations can block public transparency, accountability, and trust in institutions and relationships. For this reason, both publicly traded companies (the ones traded on the stock market) and non-profit organizations are required to publish annual reports about their finances.

In summary, privacy is a social agreement that individuals have a right to control some information about themselves in order to maintain autonomy over their lives. Confidentiality involves the obligation to protect client information within professional or institutional settings. Secrecy involves the intentional concealment or restriction of information. Understanding these distinctions is essential for promoting client autonomy and fostering trust in the professions.

6.3 The limits of confidentiality

Many governments have mandated confidentiality for some information exchanged in professional-client relationships. Prominent examples include American laws governing health care and higher education. For health care, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) demands confidentiality for health records that are electronically encoded or shared. It is often referred to as a privacy rule, but it is actually a confidentiality rule. In higher education, the Family Educational Rights and Privacy Act of 1974 (FERPA) requires confidentiality concerning most student educational records. Many other countries have similar laws. Ironically, these protections are in direct conflict with other laws on the topic of confidentiality. (See Section 6.4.)

As with other professional duties, confidentiality is a prima facie duty.

For example, FERPA is normally understood to classify a student’s course schedule as confidential information. Consider the example of a college student who is enrolled in both a morning class and an afternoon class with the same instructor because both classes are required in the student’s major. The student is often late in getting to class. Suppose that one Monday morning the class is just finishing and the student heads to the door and passes by the instructor’s desk, and the instructor says, “Don’t be late this afternoon. Remember we have the midterm today.” Other students are nearby. Any of them might take what the instructor said, look up the instructor’s teaching schedule in the school schedule, and learn that the student is enrolled in the one class that the instructor teaches on Monday afternoons, Economics 211. The instructor has violated FERPA and could be severely punished if the slip was reported to a school administrator.

Despite the strictness of FERPA, suppose that this student needs to take a medication on a strict schedule, and the student’s dormitory roommate notices that the student forgot to return to their room to take the medication at noon. The roommate cannot reach them by phone or online messaging, so the roommate calls the registrar’s office, explains the situation about the medication, and asks if the student is still enrolled in Econ 211 that afternoon. Normally, it would be a FERPA violation to answer this question. However, if the registrar confirms who is calling and agrees that there is impending emergency requiring the roommate to bring the medication to the student, then the registrar is likely to confirm the enrollment in Econ 211. Here, the registrar would not be violating FERPA, because FERPA recognizes that an impending emergency suspends the prima facie duty of confidentiality.

Generalizing from this example, the professions operate with a basic rule for when to suspend confidentiality. Information that is normally confidential is no longer confidential in situations where the information is needed to deal with a serious and immanent threat to health or safety. In other words, professionals do nothing wrong if they violate confidentiality when there is high probability (approaching certainty) that a failure to violate confidentiality will result in major harm, the nature and severity of which are clear. In other words, the threat must involve major harm, it must be credible, it must be clear rather than vague, and it must be imminent enough that there is little or no time for delay to seek an alternative solution.

6.4 The duty of mandatory reporting

In the example of the student who need the medication, the threat was a health threat to the student and the professional staff violated confidentiality in order to protect the client. But suppose that the client is the threat. This was the issue in the legal case of Tarasoff v. Regents of the University of California. As a result of the decision in this case, American law moved in the direction of mandatory reporting, which is the legal requirement for certain professionals to report specific types of incidents or suspicions to authorities. They are, in effect, mandated (required) to violate confidentiality in certain well-defined circumstances.

In 1969, a graduate student was receiving mental health therapy from a psychologist employed by the student health services at the University of California, Berkeley. The young man revealed to the therapist that he was stalking a woman, Tatiana Tarasoff, who had told him she would not date him. The patient threatened to kill Tarasoff for rejecting him. Believing this was a credible threat, the psychologist contacted the local police and sought help. (Note that this happened before either HIPAA or FERPA was in place. The psychologist was using his discretionary judgment to violate confidentiality.) The police detained and interviewed the man, but then released him. Tarasoff was away for the summer. When school resumed in the fall, the man stopped seeing the psychologist, renewed the stalking behavior, and murdered Tatiana Tarasoff.

Tarasoff’s family sued both the school and the therapist based on the idea that the duty of care includes both the client and the public. The California courts agreed, ruling that there is a professional duty to protect the public and, furthermore, the therapist’s action of notifying the police was not enough. In their first ruling, in 1974, the court said that a therapist has a duty to locate and warn the victim when there is a specific potential victim and that person is likely to suffer serious bodily harm. Mental health professionals objected, arguing that they are seldom able to make accurate predictions about the behavior of their clients. The 1974 ruling would lead to constant violation of the privacy of many clients. Upon legal appeal, the initial ruling was modified (in 1976). Now, the court decided that there is a duty to protect the public, but no duty to warn the potential victim. The ruling now became less clear: the professional has a duty to protect the public, but the court did not say how. The revised court standard said that notifying law enforcement could be sufficient, yet did not assign law enforcement any corresponding duty to protect the public. (Thus, the police could not be held liable for Tarasoff’s death, but the therapist might still be held liable even after notifying the police.)

Based on the vague duty to protect the public, professionals were now responsible for whatever they might be told in confidence. However, they did not know when they were required to violate confidentiality or what steps they had to take to protect potential victims. To make matters worse, things have become more complicated due to a 2004 lawsuit concerning the murder of Keith Ewing, who was killed by a mentally unbalanced stalker of Ewing’s girlfriend. In this case, the killer’s father had contacted his son’s therapist about his worry that his son was in possession of a gun and had made threats. Now, the court said that professionals could be held responsible for any information they knew about a dangerous client, even if the client did not provide that information. Professionals object to this standard on the grounds that they have no way to know when such third-person reports are true and when they are not. Furthermore, they should not be expected to make this determination.

Responding to the lack of a clear standard in these various court rulings, many states have adopted mandatory reporting laws that set minimum standards for various professions. Rather than let professionals decide when to violate confidentiality, many states dictate strict rules about when and how various professionals must violate confidentiality to protect the public and potential victims.

On the surface, mandatory reporting laws seem to be in the public interest, and therefore consistent with the professional duty to serve the public good. However, many professionals do not support the direction taken by mandatory reporting laws. Here are four reasons.

1. They require frequent violation of the principle of client confidentiality.
2. They typically specify a legal duty to report based on circumstantial evidence and require professionals to violate client confidentiality when the threat of harm is neither clear nor imminent nor credible.
3. Many of these laws apply to health professionals, imposing criminal justice and social work responsibilities on health workers.
4. These laws replace professional discretion with legal obligation, eroding the autonomy of health professionals.

Consider two common examples.

• Child Abuse and Neglect: In many jurisdictions, professionals such as teachers, doctors, nurses, and social workers are required to report any suspicions of child abuse or neglect to child protective services or other designated authorities. The goal is to ensure that children at risk receive timely intervention and protection.
• Gunshot wounds: Almost every state in the U.S. requires a physician to report gunshot wounds immediately to local law enforcement.

The basic objection is that the laws require too much reporting based on too little evidence. Most of the professionals who are required to report suspected child abuse are not trained to identify it. Although no database collects the numbers, there is a problem of regular reporting of parents as suspected child abusers in cases where the child has a health condition that leads to high levels of bruising or causes purple patches on the skin that look like bruises. At least five distinct diseases involve blood disorders that can lead to ugly bruising and/or bleeding, and many parents whose children suffer from these diseases are regularly reported and interrogated—and sometimes arrested—because of their child’s condition. In other words, setting the standard at a mere suspicion of abuse leads to large numbers of “false positives,” especially in families already suffering from the presence of terrible childhood diseases. Because there is not central database that tracks reports filed under mandatory reporting laws, we have no idea whether the good they produce outweighs the harm of the numerous mistaken reports.

There are also worrisome issues with mandatory reporting of gunshot wounds. First and foremost, it makes the health profession into an arm of the criminal justice system. As discussed in Chapter 4 (Section 4.6), the professions differ from one another according to the needs they address and the technical knowledge that has been developed in relation to each need. Mandatory reporting laws obscure the purpose of the health profession. There is limited evidence that it genuinely promotes health. (Oddly, mandatory reporting of domestic abuse clearly promotes health and safety, but few states require mandatory reporting for this issue.) Mandatory reporting of wounds serves prosecution of crime, a criminal law purpose. In effect, it is a warrantless entry into medical facilities to seize health records. Because the process gives law enforcement access to information without having to apply for a warrant from the courts, it is an information seizure mechanism designed to suspend basic privacy protections for individuals. As such, these laws suspend normal operations of two professions: health care and the justice system.

A key issue is whether patients have a reasonable expectation of privacy regarding gunshot wound information. Both the tradition of medicine and recent laws such as HIPAA create a reasonable expectation that health information will be used only for medical purposes. A gunshot wound does not inherently diminish this expectation. Someone who has been shot is not, in general, a public health risk. While gunshot wounds sometimes indicate criminal activity, statistics suggest that most are accidental shootings or self-inflicted (including attempted suicides). Again, the lack of a central database on the results of mandatory reporting leaves us ignorant of its positive effects. Yet studies that cobble together available data support the conclusion that slightly more than half of reported cases are non-criminal and are unnecessary violations of confidentiality. In other words, large numbers of people have their health information released to law enforcement without due process. Most of them are people who have no reason to be investigated. Many of these violations of confidentiality could be eliminated if health workers were given discretionary power, that is, if they held the decision-making power concerning which cases to report.

In other words, confidentiality seems more properly protected by making reporting discretionary instead of mandatory.

Ironically, far fewer places have a requirement of mandatory reporting for knife wounds, leaving these to the physician’s discretion whether to report the wound. Physicians are trusted to decide if someone was attacked and does not want the police to get involved or whether they cut their hand while chopping vegetables in the kitchen. In other places, health professionals are required to report any wound or injuries that likely occurred due to a criminal act. However, these laws force them to make a judgment about possible criminal activity, requiring them to speculate in an area where they have no technical expertise.

Professionals are not the only ones who are concerned about mandatory reporting requirements. Historically, the doctrine of professional-client confidentiality was central to a number of cases that limited government intervention into private life, especially women’s lives. For example, the case of Roe v. Wade (1973) recognized a woman’s right to seek a medical abortion as an extension of the right of privacy. Roe v. Wade sought to protect the autonomy of women by ensuring that adult women could work with doctors (and, by extension, other professionals) without government restriction and without having the information reported to their husbands, fathers, or other male guardians. The Supreme Court overturned Roe v. Wade in the Dobbs ruling of 2022. This change is usually discussed as a change in abortion rights, but most American legal scholars understand this reversal to be something more. It is a rejection of professional-client confidentiality. American women no longer have a basic right to privacy concerning any of their reproductive health. In effect, the Dobbs decisions granted each state the right to mandate that health care workers will turn over the health records of, for example, all pregnant women. If such a law was put into place to protect fetal life, it would involve mandatory reporting to target potential harm that is neither credible, clear, nor immanent. Legal scholars and health professionals are concerned that pregnant women who experience miscarriages and stillbirths in states that have criminalized abortion will be increasingly subjected to mandatory reporting laws and criminal investigation for failing to have successful pregnancies.

In summary, the recent rise of mandatory reporting is intended to serve the public welfare. However, there are strong reasons to think that professional discretionary reporting is ethically more appropriate. In the absence of clear evidence that the laws are highly effective, the constant violation of confidentiality that they demand is morally troubling.

6.5 Whistleblowing

The Tarasoff case raised questions about standards of client confidentiality when a client is a threat to a third party. But many professionals encounter a variation of this problem. Their work for an organization poses a threat to public welfare, and the organization does not fix the problem when the professional uses internal reporting to bring it to the attention of superiors. Worse yet, the professional might be assigned to do work that they believe will contribute to public harm. Can they alert the public and justify doing so by appealing to the duty to serve the public? Even if alerting the public requires violations of confidentiality? What if there is no duty of confidentiality, yet the information will harm the organization or the profession?

Whistleblowing is the activity of revealing an organization’s secrets to the public to prevent harm or to bring wrongdoing to justice. These secrets may or may not be protected by a confidentiality agreement. Often, they are not, yet there may be intense social pressure to keep the information secret.

In these situations, public welfare includes anyone and everyone who is not a member of the organization that employs the professional.

My Lai 1968

 

 

Several of the most famous examples of whistleblowing have involved the military. On March 16, 1968, at the height of the Vietnam war, American military entered a small group of villages identified (wrongly) as My Lai, seeking enemy troops. They found women preparing breakfast for some children and village elders, but there were no military-age men. A search turned up several weapons, suggesting that enemy soldiers had been present but had fled. Angry that the villagers would not cooperate, Lieutenant William Calley violated military ethics and international law by ordering his troops to kill the villagers. He began doing so himself and murdered at least 22 people. Some of the men under his command used machine guns to slaughter the civilians, and the troops burned the main village to the ground. In a short time, more than 500 Vietnamese civilians were dead.

Reporting on military actions undertaken that day, U.S. command in Vietnam falsely reported this activity as a successful sneak attack at My Lai that killed 128 enemy combatants. However, rumors of Calley’s behavior circulated widely, and the army launched an internal investigation. Their initial report on the atrocity stuck to the story of a successful battle but said that 20 civilians had been accidentally killed by artillery fire (rather than executed by troops at the scene). When those with knowledge of the truth protested the false reporting, Major Colin Powell was instructed to conduct a broader investigation. His report likewise failed to find fault with Calley or the troops under his command.

Notice that the atrocity was ordered by the professional at the scene, Calley, and then was kept secret from the public at multiple stages by superior officers, who were also men with professional status. The war and the related draft of young men were controversial political issues leading up to the 1968 presidential election. The professional class of the military appears to have adopted a strategy of secrecy about war atrocities in order keep more of the American public from turning against the draft and against politicians who supported the war.

Despite the absence of a confidentiality agreement, this kind of professional secrecy is not uncommon among professionals who are aware of wrongdoing but fear public reaction if it becomes known. Although professionals may wish to keep secrets of this kind, secrecy in a case such as this one cannot be justified by pointing to client confidentiality, and actively lying to the public about it is contrary to the expectation that professionals are bound by service to the public. (At best, confidentiality might have extended to those being investigated by Powell, but this would not extend to fact that more than 500 non-combatants had been killed.) Eventually, information reached several members of congress. They demanded action, and the Pentagon responded by conducting a secret court martial of Calley.

The truth was revealed to the American public in November 1969, when a news service released a story about the killings and court martial. A few days later, Ronald Haeberle revealed that he had been an official army photographer, had been present at the scene, and had documented the killings. He permitted a handful of his photographs to be published in newspapers, and the public began to grasp the extent of the problem and the coverup. Melvin Laird, the U.S. Secretary Defense, is documented as having become angry that the “leaking” of the photos meant that the military could no longer keep its secret. As a result, the military brought charges against 14 officers and 12 other military personnel. However, in the end only Calley was found guilty, and he served a sentence of less than four years for the crime of killing more than twenty civilians.

The publication of some of Haeberle’s photographs of corpses—internal military documents—was the key move in bringing the My Lai killings to the attention of the American public. It also led the way to revelations of other, similar behavior that was taking place on a wide scale in the war zone. The public learned of the ongoing and pervasive failure of U.S. military officers to abide by their professional pledge to uphold the Uniform Code of Military Justice, which protects civilians from unwarranted harm and killing.

Haeberle, the photographer, returned to civilian life less than two weeks after documenting the atrocity. He did not release his photos to the press until the story about the massacre had appeared in multiple newspapers. Asked why he had kept the photographs hidden, Haeberle explained that he had been trained to suppress anything unflattering to the military.

In bringing the story of military wrongdoing to the public, Ronald Haeberle and others who supplied the press with information about the killings near My Lai were whistleblowers. (Think of a sports referee blowing a whistle to call a foul.)

In thinking about whistleblowing, it is important to keep in mind the difference between saying someone has an option to release a secret (they would not be wrong to do so) and saying they have a duty to release it (they would be wrong not to do so). There is no plausible reason to think the My Lai whistleblowers were wrong to provide evidence about military wrongdoing to the press. But is there reason to think that anyone had a duty to be whistleblowers? Was their whistleblowing a praiseworthy but discretionary action, or was it their moral duty?

Given his firsthand knowledge of the massacre and his possession of overwhelming evidence, many people think that Haeberle had an ethical duty to come forward much sooner. Furthermore, he had reason to think that atrocities were continuing to happen and he knew that the military would continue to lie about them. By releasing the photos sooner, he could have helped save an unknown number of innocent civilian lives during the year that he delayed. Granted, Haeberle was not the only witness who knew about it and who could have come forward sooner, but his evidence was the most powerful and made the biggest difference, so he had a stronger duty to blow the whistle on the military.

On the other hand, there is strong reason to say that Haeberle did not have any such duty. His rank did not qualify him for professional status during his time as a military photographer, and he was not a professional afterwards. Therefore, he had no duty to serve the public, and no duty to be a whistleblower. To demand whistleblowing by someone who has no special duty to protect the public is to demand supererogatory action, that is, an action that is morally good but requires so much from them that we cannot expect them to take that action. We might hope they would, but it is not their duty.

The same can be said of Daniel Ellsberg, the most famous whistleblower of the Vietnam War. As a consultant to the Pentagon, he secretly copied thousands of pages of documents and then shared them with reporters. The so-called “Pentagon papers” showed the vast scope of public deception by military and government leaders about the situation in Vietnam. They had lied for more than a decade to justify the military draft and the deaths of nearly 60,000 Americans in that war. Ellsberg had no professional duty to warn the public. Therefore, his whistleblowing was a supererogatory action. Ellsberg suffered persecution—both legal and illegal—at the hands of the Nixon administration for what he did, illustrating the degree to which whistleblowing can demand great personal sacrifice. In another famous case from the same decade, Karen Silkwood appears to have been murdered to stop her from revealing evidence of dangerous and careless practices within the atomic energy industry. While that is the worst scenario, whistleblowers are commonly harassed and fired by their employers. Because the personal cost is so high, not everyone who knows about serious wrongdoing by an organization has a duty to be a whistleblower.

While Ellsberg had no duty to reveal what he knew, things are frequently different for the professions. Whistleblowing seems to be a duty for some professionals rather than a supererogatory action.

This position stresses that every professional has a basic duty to serve the public good. But there are times when a professional is part of an organization that exploits the professional’s expertise to carry out a plan of action that is contrary to the public interest. When this happens, working for the organization creates a violation of professional duty. Once the professional becomes aware that their work for the organization is leading to public harm or otherwise undermines the public good, the professional is complicit in wrongdoing. Like a getaway driver in a robbery or a someone who gives a false alibi for a friend who’s charged with a crime, complicity in the wrongdoing of others makes one a “partner in crime.” Morally, a complicit helper can be judged as equally wrong as the person in the group who does the worst action.

Put simply, a complicit professional is an immoral professional. The only way to make things right is for them to come forward and to object to the wrong or harmful action. Some professional organizations, such as the American Bar Association, have established procedures requiring reporting of wrongdoing on the part of others in the same profession. However, in many cases the wrongdoing is planned or carried out by non-professionals within an organization, using professionals as complicit partners. These are the kinds of cases where the news media may be the only effective forum for whistleblowing.

Silence within an organization can compound the wrongdoing. If a professional’s work contributes to harm, then the professional’s failure to raise objections is additional complicity—that is, a further partnership to do wrong.

Minimally, a professional who is aware that their work contributes to harm being done either to a client or the public must begin by raising objections within the organization. They should begin by reporting the problem to their supervisor or immediate superior. (Aware that supervisors cannot always be trusted to handle things, and knowing that internal complaints are sometimes punished, responsible organizations will have a process in place so that complaints of this kind can be made to a neutral party, generally in human resources, who will bring it forward anonymously.) If internal objections do not convince superiors in the organization to right the wrong, then a complicit professional has a duty to reveal the activity to the public.

Complicit engineers and accountants: the Ford Pinto

The Ford Motor Company was founded by Henry Ford in 1903. Introducing the modern assembly line into factory production, Ford’s cars were both cheap and reliable and Ford became one of America’s most popular auto companies. After the middle of the century, foreign companies began to challenge the American auto brands by creating smaller, cheaper vehicles. The Japanese Datsun and German Volkswagen became popular and common in the 1960s. As international demand for oil raised gasoline prices in the 1970s, increasing numbers of Americans chose the lighter, more fuel-efficient cars made by foreign companies. In response, Ford tried to remain competitive by designing a smaller, more fuel-efficient car to sell alongside its existing lineup of large vehicles. In 1971, they introduced the Ford Pinto as their new subcompact car.

The Ford Pinto became a notorious case of corporate negligence. The Pinto had a design flaw that made its fuel tank susceptible to rupturing during rear-end collisions. This flaw had potentially lethal consequences, as it could lead to fuel leakage and subsequent fires.

As they were working on the car’s design, Ford engineers discovered that the Pinto was subject to a punctured gas tank and a fire when the car was hit from behind. The tank punctured even in very low speed accidents (e.g., if a Pinto was stopped at a traffic light and the car behind started too soon and hit it at very low speed). What was the flaw? Lighter vehicles get better gas mileage. To keep the car at a low weight so that it had good gas mileage, the Pinto had a very small, weak rear bumper. The gas tank was located behind the rear axle (which drives the rear wheels). If the tank was pushed forward when the car was hit from behind, it was pushed into the rear axle. Bolts on the axle assembly punched holes in the gas tank. Leaking gas could then catch fire easily if sparks were created during the accident.

 

 

At a rear impact of 30 mph, the doors often jammed, trapping everyone inside the car. At this speed, the gas tank normally leaked gasoline into the passenger area.

Engineers informed Ford executives of the problem and offered a range of solutions to improve safety and save lives. The most expensive solution would have cost about $10.00 per vehicle. Another effective solution would have cost about half that much. However, the engineers also calculated that the Pinto was no less safe than other American subcompact cars even if no changes were made to the design. So, fixing the problem would actually make it safer than the competition.

Accountants at Ford were instructed to work with the engineering team to analyze the situation. Shockingly, their analysis suggested that it would be more cost-effective for Ford to settle lawsuits than to fix the defective design. Over the ten years that Ford would produce Pintos, the cost of a safer design would be as much as 32 million dollars. But using data from accidents, the accountants calculated liability and predicted that the company would likely pay about $200,000 for each person killed when a Pinto caught fire. They estimated that it would cost the company between 12 and 15 million dollars to settle with the families of people burned to death when a Pinto caught fire. The report predicted that Ford would make more money by not fixing the problem. A report of this kind is called a cost-benefit analysis. One of the engineers seems to have produced a summary of the cost-benefit analysis and this document was leaked to the press in 1977 along with other information about Ford’s decision-making process. The identity of this whistleblower is unknown to this day.

In summary, internal memos and documents demonstrate that Ford’s management was aware of the safety concerns surrounding the Pinto’s fuel tank before they approved production of the vehicle. However, the company chose to prioritize cost-cutting and profitability over safety. The cost-benefit analysis conducted by the company led them to release the Pinto without addressing the design’s structural flaw.

Ford sold approximately 3 million Pintos between 1971 and 1980. After the public learned of the safety issue and about the cost-benefit analysis, Ford issued a recall of the vehicle in 1978. They modified the older cars with one of the safety measures they had rejected before the Pinto went into production. The recall cost them over $130 million, which was many times more than they had gained by not fixing it during the design process.

The Pinto case is by no means the only one where engineers have been complicit in design work that conflicted with their professional pledge to prioritize public welfare. A nearly identical scenario played out in the same decade over at General Motors, where a poor fuel tank design on pickup trucks also led to eruption and fires that could have been avoided with an inexpensive fix. Unlike Ford, none of GM’s engineers was willing to be a whistleblower and GM kept their bad behavior secret until 1992. A few years after that, GM engineers apparently created an internal system that permitted 6 million vehicles to give false emission readings, allowing GM vehicles to improve their gas mileage by polluting at illegal levels. General Motors eventually agreed to pay a fine of more than $145 million, but they denied having engineered the vehicles to give false readings. However, the issue with GM vehicles appears to have been the same as for 11 million Volkswagen vehicles that were purposely engineered to cheat emissions tests. As with the Pinto, the penalty cost of recalling the Volkswagen vehicles and fixing them was far higher than the profits made by producing and selling the vehicles.

Psychologically, whistleblowing can be very difficult. It can demand a high level of courage. Haeberle was slow to release his photographs because it went against the “team” player culture of the military. However, many duties of professional life create stress and psychological challenges, as suggested by the evidence that professionals suffer “burn out” at higher rate than most workers. Demanding whistleblowing to protect the public is stressful, but not necessarily more stressful than the guilt of complicity.

At the same time, the topic offers a strong reason why it is a mistake to think that loyalty is a core duty of professional life. (See also Chapter 3, Section 3.5.) A prima facie duty of loyalty that puts loyalty to client or employer ahead of the duty to serve the public good is one that sees whistleblowing as prima facie wrong. However, it can never be wrong to confess one’s own wrongdoing, and this is why the duty to be a whistleblower only holds for professionals who are themselves complicit in the harm or wrong they report. Loyalty may be a reason to think that one should begin by working internally to right the wrong, but it cannot be used as a reason to suppose that professionals are in the wrong if they are whistleblowers about activity that involves them.

6.5 Concluding summary

Professionals know many things about clients that clients may not want others to know. To promote client autonomy, professionals should treat all information received from clients as secret and confidential. There is a prima facie duty not to share client information except with other professionals on a need-to-know basis. At the same time, the professional-client relationship cannot be used to make professionals complicit in client wrongdoing. When a professional has credible and clear information that a client threatens others with immanent major harm, the professional may use their discretion and protect third parties by revealing information that would otherwise be confidential. However, in response to several high-publicity cases, laws have been put into place requiring certain professionals to violate normal expectations of confidentiality. These laws frequently dictate a violation of confidentiality when threat of harm is not clear or credible and where no imminent harm is predicted. Finally, confidentiality and organizational secrets should be violated when a professional finds themselves complicit in supporting or creating a threat to the public. In such cases, professionals may have a duty to resort to whistleblowing, that is, going public with information that the organization or client does not want made public.