President Gray's Testimony Before the Wisconsin State Assembly
ANTHONY J. GRAY
CHIEF EXECUTIVE OFFICER AND PRESIDENT
INSTITUTE FOR GLOBAL ETHICS
ASSEMBLY COMMITTEE ON CONSTITUTION AND ETHICS
WISCONSIN STATE ASSEMBLY
FEBRUARY 27, 2018
PRIVATE PRIVILEGE VS. PUBLIC RIGHT: FRAMING ETHICAL DECISIONS
Thank you for asking me to speak here today, it’s truly an honor.
My name is Anthony Gray, and I’m the President and CEO of the Institute
for Global Ethics, an ethics thinktank headquartered in Middleton, WI.
I’ve run IGE for the past five years, prior to which I served as
Global Compliance Officer at Sikorsky Aircraft Corporation, where my responsibilities
included internal investigations, ethics education and training, legal
and regulatory compliance, enterprise risk management, as well as serving
as chief ethics and compliance officer. Before that I was a member of
the energy and finance departments at the law firm of Day Pitney LLP of
Hartford, Connecticut, and, while in law school here at UW, served as
Judicial Intern for Chief Justice Shirley S. Abrahamson of the Wisconsin
I currently serve on the Wisconsin State Bar Association Board of Governors,
am past-President of the Nonresident Lawyers Division of the Wisconsin
State Bar, and have previously served on boards of Lawyers for Children
America, Community Health Services of Hartford, Hartford Community Loan
Fund (CDFI). I was also a Commissioner of the Hartford Economic Development
Commission, and am currently a board member at Forward Community Investments
in Madison. Along with my J.D., I’ve received an M.A.R. in Ethics
from Yale Divinity School and a BGS from the University of Connecticut.
Thank you again for having me.
These are important questions we’re discussing here, and what we’ve
heard from Mike, Denis, Rick, and Mark has provided some important, meaningful
context from a number of different perspectives. My role here is to discuss
a bit about the process. That’s what we do at IGE. Instead of telling
people what they should think about an issue, we focus on giving them
the tools to reach ethical conclusions on their own. So that’s my
goal: to discuss one possible process that could help us all reach an
So, to that end, I’m going to talk about a few things. First, I’ll
briefly go over what we do at IGE, and how that process might apply here.
Second, I’ll review the structure of what we call a dilemma, a particular
sort of problem that pits two positive values against each other. Finally,
I’ll go through the sides at issue here, and propose some potential
structures for their resolution.
Private privilege and public right are both important ethical values, and
it’s important to come at the issue from that angle—one doesn’t
obviously trump the other, or we wouldn’t be sitting here today.
It is a question worth examining because it is difficult. My hope is that
whatever the resolution, it will not only be used to resolve the question
at hand, but also to inform our own, personal views on disclosure and
privacy in other arenas. After all, it’s not an isolated question.
It’s constantly relevant on the local and national stages.
While I cannot tell you what to conclude, I can tell you that one way to
determine whether a conclusion is ethically consistent is to examine whether
it would apply in other, similar situations. If transparency only trumps
privacy when the materials will serve your agenda, then you’re not
pursuing transparency at all. That’s partisan self-interest. And
there’s nothing ethical about that.
With that said, I’d like to talk about my organization a little bit.
The Institute for Global Ethics is the nation’s oldest ethics think
tank. We’re an independent, nonsectarian, nonpartisan, 501(c)(3)
nonprofit organization, whose mission is to provide practical tools to
build ethical fitness and cultures of integrity at home, at school, in
the workplace, and in society. For almost three decades, IGE has been
focused on helping people reason through the ethics of daily living. As
I said, our goal is not to tell people what to think, but to offer tools
and frameworks that help them with how to think through tough ethical
issues. In recent years, we’ve expanded our methodology to focus
not only on individual attitudes and behaviors, but also human ecocultures,
the contexts and cultures that must align and support individual efforts
in order for organizations to act ethically.
Our most fundamental principle is what we call Ethical Fitness®, a
thought process designed to resolve complex situations like this one.
After all, we live in a complicated world, one that requires us to face
difficult ethical matters every day, whether at work, at home, or in the
news. To complicate matters further, these questions often present dilemmas,
situations which—unlike your standard ethical choice, between right
and wrong—present you with two or more reasonable, principled alternatives.
These “Right vs. Right” situations are challenging, and although
we see them every day, we are not innately equipped to solve them, even
if we have a keen sense of what’s right.
That’s where our process comes in. Reliable enough that its core
principles have survived over twenty-five years but flexible enough to
reach diverse audiences, our process is built around group participation,
shared ethical values, and the process of breaking down complicated ethical
dilemmas into discrete, actionable steps.
As I said, we define a dilemma as a “right vs. right” situation,
and although the process is considerably more in-depth, I’m going
to walk you through three of the fundamental steps, as applied to the
question of private privilege vs. public right. They are 1) values definition,
2) dilemma analysis, and 3) dilemma resolution.
The first step, here, is easy: the opposing values in play are 1) the privacy
of public employees, versus 2) governmental transparency. While we all
might have our own opinions on which should outweigh the other in any
given situation, I think we could all agree that, broadly speaking, both
privacy and transparency are positive values. They are things we have
ourselves cared about in our lives. We can easily understand when others
need them. The issue isn’t that one matters more than the other—the
issue arises because
both matter. It is difficult to find the right answer, that is, because neither
is necessarily wrong.
Let’s briefly take a look at each.
Privacy, or private privilege, is absolutely a fundamental good. We all
know this. It’s important in our personal lives, but privacy also
plays a role in how democracy functions. Anonymity is an important safeguard
against voter intimidation, targeted campaigns, and other strong-arm tactics.
This is amplified by how the expectation of privacy shapes our personal
decisions. But voter information isn’t all that might need to remain
private. It’s like they say, nobody wants to see how the sausage
gets made. Messy compromises are required for legislation, and internal
communications aren’t always made with the care given external releases.
The expectation of privacy, that is, leads people to be more casual, more
open, and, ultimately, to forge the connections and make the compromises
necessary for government to function. Similarly, courts and other institutions
often seal files, investigations, or particular pieces of evidence away
from the public to protect the individuals involved. The story of government
is the story of privacy, carefully modulated. From classified information
in e-mails, to Watergate, to Area 51, to the entirety of the modern news
cycle, privacy is a foundational value of government and democracy.
But it’s not the only one.
Governmental transparency promotes ethical behavior, supports legitimacy,
and educates the public. Although it is arguably not best for the populace
to have access to all information, they clearly have a right to a significant
amount of the data produced and held by their government. We see this
in acts like FOIA, whereby members of the public have a right to request
access to various records. There is an undeniable benefit to informing
the public. A democracy that operates in secret is arguably not a democracy
at all. Similarly, between private parties, it is often best to disclose
information. Not always, of course. But generally speaking, a policy of
open communication is sound, absent compelling reason to keep some piece
of information from the person requesting it. After all, the argument
might go, what are you trying to hide?
Once we’ve identified the values in play, we look at what IGE calls
the four dilemma paradigms. These are common situations into which dilemmas
often fit, because they are some of the most persistent, fundamental conflicts
that the human condition presents. My guess is that not only will they
seem familiar, but also that they’ll remind you of dilemmas you’ve
faced in your own lives.
The four categories of dilemmas are 1) Truth vs. Loyalty, 2) Individual
vs. Community, 3) Short Term vs. Long Term, and 4) Justice vs. Mercy.
Not all of them apply in any given situation, but one or more of them
often does—we’ve already heard quite a bit about several,
although not in precisely these terms. To me, the clearest paradigms that
apply would be individual vs. community and short term vs. long term.
Individual vs. Community issues arise every day, at many different levels.
After all, some sacrifice is almost always necessary for broader progress.
On the other hand, disregarding the well-being of small groups leads to
oppression, inequity, and strife. Because remember, this is not necessarily
about one person compared to everyone—it’s about one entity,
as opposed to the community at large. In this case, the privacy rights
of an individual, or small group of individuals, are clearly being weighed
against the benefits to the community of disclosure.
Another potential framework would be Short Term vs. Long Term. This is
another classic concept in ethical thought, but also arises in our personal
lives. Do we watch another episode of Stranger Things, or do we go to
the gym? Do we order the cheeseburger, or the salad? How much do we put
into our 401k every month? Almost every choice we make in our own lives
requires some degree of balance between short- and long-term interests
to be rational. Similarly, the short-term benefits of retaining or releasing
the information here must be weighed against the long-term consequences.
An ethical principle that applies in this situation, after all, does not
only apply in this situation. To take the side of transparency in this
case but champion privacy in all others would be hypocrisy. There must
be some compelling, nonpartisan argument to explain why, of all the situations
that have or might arise, the public only has a right to know in this one.
So now that we’ve clearly identified the particular values in play,
and the paradigms that best describe their conflict, we need to work our
way to a resolution. Our method at IGE draws on some of the most fundamental
ideas from classical moral philosophy, but ultimately offers three of
what we call Resolution Principles. These will be familiar ideas to most
of you, I suspect, but it’s important to remember that no one principle
is always correct. If that were the case, we wouldn’t consider all
three. Rather, each principle is designed to best apply in particular
situations. Which principle you believe best resolves this issue depends
less on the principle itself, and more on how you, as the decision-making
individual expressing personal agency, view its interaction with the dilemma
paradigms. The three resolution principles are: 1) Ends-based, 2) rule-based,
and 3) empathy-based.
Ends-based principles are, generally speaking, what you’d think of as utilitarian. They
measure the consequences of each choice to determine which is right. The
greatest good for the greatest number, that sort of thing. Is it right
to steal bread to support your family? An ends-based principle might say yes.
Rule-based principles are not based on the consequences at all, but rather on German philosopher
Immanuel Kant’s Categorical Imperative. In brief, would the world
be a better place if everyone made a similar choice when placed in a similar
situation? To take our bread example, if everyone who couldn’t afford
an item simply decided to steal it, soon there would be none available
at all and the seller would be out of business. On the other hand, if
it were to be stolen only by people who had literally no other options
to feed their family and no possibility of earning sufficient income in
time, then the outcome might be different. As you can see, this is complicated.
Much depends on how you frame the particular question, and how you limit
the particular rule.
empathy-based principles. Basically, do unto others as you’d have them do unto you, most commonly
codified in the Judeo-Christian tradition as the golden rule. Put yourself
in the other person’s shoes. This requires a particular empathy,
and can be challenging, but can also be very effective.
I’ve personally found that the most effective, consistent solutions
are reached by working through a dilemma in each of these three ways.
Sometimes, one result is clearly absurd. Other times, they all come to
the same, logically consistent conclusion. But every single time, the
process has helped me clarify my personal thinking on the topic. That
is to say, it has always provided some degree of guidance, even if only
identifying which questions in life are truly dilemmas, and which are
manufactured by our own imperfect perception.
Looking at this dilemma under ends-based principles, it’s clear that
the resolution depends on what actions would likely occur once the information
was made public. We already know who benefits from continuing privacy:
those who desire the information to remain private. That is only one side
of the analysis, however. The other speakers here today may help you inform
your own, personal conclusion on this question. Under one view, nobody
would be harmed at all. Under another, that disclosure could cause substantial,
if intangible, harm to a great many people. Some might think the disclosure
would, in fact, only benefit democracy, while others firmly believe that
it would be used to undermine it.
This is a particular challenge of the ends-based approach: oftentimes,
the principles you bring into it will determine the conclusion to which
it leads you. My only suggestion would be that, when addressing a question
in this manner, you strive for objectivity as much as possible. We are
all unavoidably subjective, of course, but ends-based principles require
us to subjugate our own beliefs as to what should happen to a rigorous,
rational investigation—based on history, facts, and data—into
what probably will. To use the ends-based principle in any other way is
more than inaccurate. It would be irresponsible.
Under a rules-based principle, the primary disagreement would be over how
to frame the situation. Clearly, no single answer can encompass all disclosures,
by all parties, to all who would request them. Not even George Washington
would argue that, cherry tree notwithstanding. The precise delineation
of private privilege versus public right, in this view, depends on the
conditions you place upon it. What is the particular situation? What is
the scope of disclosure? What were the expectations of privacy, and would
it breach them? What are the motivations of those requesting, and what
tangible role would the information play? These are complex questions,
and require a similarly objective, similarly rigorous thought process
as attempting to predict the likely outcome of each decision.
If a person’s goal is simply to validate their desired outcome, a
logical fallacy known as confirmation bias, then none of this is worthwhile.
It is a waste of everybody’s time. Principles such as this only
become useful once those applying them buy into the idea that the world
is better when people make more sound ethical decisions, even if they
might not be the ones we want. The process itself, it would seem, presents
something of an individual vs. community problem.
Finally, applying the empathy-based principle, the answer seems rather
clear: if you thought your information would be private, you’d want
it to stay private. But on the other hand, if you truly believed that
disclosure would benefit everybody, that would be your desired outcome.
Here we see how the empathy-based principle can sometimes fail when applied
to zero-sum games, because the outcome depends entirely on which party’s
perspective you approach it.
Unlike the previous two principles, there is no level of intellectual rigor
that can resolve this fact, although an idea from political philosopher
John Rawls comes close. His notion of the Veil of Ignorance proposed that
ethical thinkers imagine they had not yet been born, then craft a policy
that would be fair regardless what segment of society they were eventually
born into. In this case, the resulting policy would be a detail-oriented
balance of public and private needs, protecting the individuals with a
reasonable expectation of privacy while also providing the public with
If all that sounds complicated, that’s because it is. Difficult problems
do not have simple solutions. The conflict between privacy and transparency
is extraordinarily challenging, with the proper resolution often turning
on a single, otherwise insignificant detail. Clear answers are often elusive,
and often undesirable when found.
The process of democracy requires an obvious, clear answer less than it
does an intelligent, informed process.
My hope is that my testimony today will help clarify some of the difficulties
inherent to crafting such a process. After all, every important decision
comes with its challenges, although the particular challenges may vary
with the individual, the values in play, and the situation as a whole.
By using our framework to evaluate the question, however, the points of
conflict become clearer. Even if it does not lead to an obvious answer,
the process almost always leads to a more productive discussion.
On that note, and in conclusion, I would be derelict in my duty as a practicing
ethicist if I didn’t highlight how it necessarily requires bipartisan
cooperation to resolve ethical issues. One entity cannot force another
to be ethical. It must be a collaborative effort. The moment the authority
to force that behavior exists, we’re no longer talking about ethics
at all. We’re talking about compliance. Somehow politics has become
divorced from the art of the possible—the principled, hard-fought
compromise—and the notion of compromise reduced to the moral equivalent
of capitulation or, worse, complicity. If we want to move forward as a
state, and a nation, we need to stop judging ethical issues against a
partisan divide, and start working together to find the right answers.
Thank you for the opportunity to contribute our expertise to this hearing,
and I look forward to answering any questions you may have.