The article is here; the introduction:
People lie to gain access to private property in a surprising variety of contexts. Civil rights “testers” create false identities and pose as potential buyers or renters to investigate racial discrimination by real estate agents and landlords. Labor activists secure jobs in non-union workplaces so they can organize the company’s workers. Law enforcement officers pose as drug dealers to gain access to a drug warehouse. An investigative journalist infiltrates a white nationalist group so she can write a story about the group’s philosophy and propensity for racist violence. A private investigator working with an elder advocacy organization takes a job at a local nursing home documenting elder abuse. In previous work, I have described these practices as “investigative deception,” “intentional and affirmative misrepresentations or omissions about one’s political or journalistic affiliations, educational background, or research, reporting, or political motivations to facilitate access to truthful information on matters of considerable concern among public opinion.”
Each of these situations has important similarities. First, they all involve intentional and material misrepresentation of the speakers’ true identities, motivations, and actual employers or sponsors. Second, lies are told with the intent to deceive the target of the investigation and the goal of gaining access to private spaces and proximity to people who would not consent to such access if they knew the truth. Third, the access gained through these lies potentially implicates some common law rights. Fourth, all these liars seek benefit not for themselves personally but for a greater social good. The information they uncover will be used to enforce laws, facilitate political association, inform public discourse, and promote legal and social reform. Finally, the people deceived in each case would strongly prefer that the information emerging from these investigations not be made public. In a way, all these lies could be classified as a form of fraud.
The similarities between these types of investigative deceptions, however, do not relate to how law, ethics, and perhaps society view them. Civil rights testers, undercover police officers, and union representatives are all widely accepted and legally permissible forms of investigative deception. However, much of the journalism profession disputes the ethics of undercover journalistic investigations, and tort claims have been brought against news outlets and journalists for conducting such investigations. The legality of undercover investigations by advocacy groups has also been questioned. Some states have criminalized investigative deceptions used by animal rights organizations, while others have enacted statutes that create new tort claims against undercover investigators; Although some courts have held that such laws violate the First Amendment, the doctrine is still evolving.
This essay explores the different contexts in which investigative deceptions are employed and seeks to understand why the legitimacy and acceptability of these lies are so divergent.
Why, for example, are some types of investigative lies legally and ethically acceptable and other comparable lies condemned? In all these contexts there is an implicit, or sometimes explicit, balance of interests. Are the harms caused by investigative deceptions outweighed by the greater public good they achieve? Balancing may influence that decision, but the larger question is whether the law, courts, and American society view investigative deceptions as a desirable practice within our social order. In achieving this balance, we might unify our understanding of these investigations as a valuable social practice.
Part I of this essay provides a descriptive account of investigative deceptions in five distinct contexts, while also examining the legal (and sometimes ethical) infrastructure through which these deceptions are constructed, evaluated, and sometimes challenged. Part II then seeks to explain that understanding the similarities of these investigative deceptions as desirable social practices helps inform First Amendment doctrine as applied to government attempts to limit or prohibit them.