Ethics in Competitive Intelligence

From CI-wiki
Contents
1 Introduction
2 Ethical Challenges in Competitive Intelligence
[1]
2.1 Misrepresentation
2.1.1 mitting some details a!out one"s identit#
2.1.2 $ot revealing one"s identit# in a pu!lic venue a%ter overhearing classi%ied in%ormation
2.1.& $ot disclosing true intent on how in%ormation will !e used
2.2 Client Con%lict
& Ethical 'uidelines in Competitive Intelligence
&.1 (aw and Ethics
&.2 Formal Codes o% Ethics
&.2.1 Industr# 'uidelines
&.2.1.1 )CI*
&.2.1.2 Fuld + Compan#
&.2.1.& ,he -ade )#stem
&.2.1.. /,he 0i!le o% 0I Ethics/
&.2.2 Corporate Codes o% Ethics
&.& *ersonal Ethical Considerations
&.&.1 ,hree ,ests
&.&.2 Ethical Frameworks
. Cases o% rgani1ations accused o% 2nethical CI *ractices
..1 racle
..2 -est3et
..& )4*
... 5ewlett-*ackard
..6 Common Misconceptions a!out CI revealed !# these Cases
6 Conclusion
7 8e%erences
9 4uthors
Introduction
Competitive intelligence :CI; is receiving more notoriet# in ever# industr# sector. ,his discipline can aid companies
to make !etter strategic decisions !# gathering in%ormation a!out their industr#. CI is a #oung discipline compared
to pro%essional areas such as accounting and medicine that have esta!lished guidelines in areas such as ethics.
4l!eit there are general CI ethical guidelines communicated !# the )ociet# %or Competitive Intelligence
*ro%essionals :)CI*;< there are man# litigious situations that CI practitioners encounter where!# their decisions can
!e either construed as ethical or non-ethical depending on the person"s point o% view. ,his is a challenge %or man#
CI practitioners !ecause there is no distinct code o% conduct %or these situations.
-e will discuss these am!iguous situations in more detail and provide some help%ul hints in handling these
challenging situations. -e will also discuss cases o% organi1ations accused o% unethical CI practices and highlight
the e=istence o% misconceptions a!out CI that these cases reveal.
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Ethical Challenges in Competitive Intelligence
[1]
Misrepresentation
Misrepresentation is the most common issue that subdivides many CI practitioners in many ambiguous ethical
issues. Misrepresentation is falsely identifying oneself in order to receive or access information that would not have
been provided if ones identity was used. There are three common cases of misrepresentation where there is some
ambiguity:
1. Omitting some details about ones identity
. !ot revealing ones identity in a public venue after overhearing classified information
". !ot disclosing true intent on how information will be used
Omitting some details about ones identity
CI practitioners agree that lying about ones true identity to obtain information that would not have been provided if
someone had given their true identity is unethical. #owever some practitioners believe that it is acceptable to omit
details about ones true identity to get information. $or instance if someone has two identities% a part&time student
and a director for a ma'or company% and this person has a school assignment to collect information about a company
that happens to be a competitor of the persons employer% some CI practitioners believe it is fine to not reveal that
they wor( for a competitor in order to receive the information they need to complete the school assignment.
)lthough this raise some concerns because the competitor may have not provided any information to the person if
the competitor found out that this person wor(ed for a direct competitor.
Not revealing ones identity in a public venue after overhearing classified information
)nother issue where some CI practitioners felt it was not necessary to reveal their identity is when they overhear
classified information about a competitor at a public place. CI practitioners argue that the person who disclosed the
classified information is at fault because they should have been aware of their surroundings. )t the same time some
people argue that CI practitioners could have planned to be in the vicinity in hopes to hear any unravelling
information about a competitor.
Not disclosing true intent on ho information ill be used
)nother misrepresentation issue is not disclosing the true intent on how the information will be used. Many CI
practitioners are consultants who are paid by their clients to get information about their competitors. *ome CI
practitioners would get the information re+uired by surveying the competitors and suggesting to the competitor that
they are collecting industry information although not revealing the true intent on how information will be used.
*imilar to the other two misrepresentation e,amples% the common theme they all have is -what is the intent of the
CI practitioner./ The persons intent is the source of whether the situation is ethical or non&ethical.
Client Conflict
Client conflict arises mostly with CI practitioners who are consultants. CI consultants agree that there should never
service competing clients at the same time because the practitioner may act in favour of one of the clients and share
classified information about a competitor. On the other hand many CI consultants are industry e,perts and there
going to be instances where their e,perience and (nowledge they gained from the industry over the years may bring
them to face an ethical stance on which information he or she can share with a client because it could be classified
information about a competitor.
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Another conflicting issue is the client and CI consultant relationship. Usually clients often seek CI consultants to
gather information about their competitors. The ethical issue is at what cost or length does the clients expect the CI
consultants to get the information. CI consultants are a midst of a lot of pressures to provide the information that the
clients are seeking and they tend to encounter ethical issues when getting the information. One of the reasons the
clients hire a CI consultant is to try to distance themselves from facing those ethical situations.
Ethical Guidelines in Competitive Intelligence
CI practitioners who aim at conducting their activities in a completely ethical manner can consider several elements
for guidance the law! industry guidelines" corporate ethics policies # if they exist # and personal moral codes.
Law and Ethics
In general and in competitive intelligence in particular! what is legal can be ethically $uestionable. There are many
gray areas.
This is exacerbated by the fact that there is no specific Canadian legislation dealing with industrial espionage! as
there is in the U%! with the &conomic &spionage Act or the Uniform Trade %ecrets Act. Currently! Canadian
businesses have to rely on common law and criminal provisions to protect confidential business information.
'ut these provisions are not appropriate. (or instance! no statutory definition exists for confidential information.
)*+
A list of factors make up for the definition! which includes ,whether the owner of the information has clearly
communicated that it was confidential in nature and took measures to ensure the information remained secret! )-+
whether only a few people knew of the information! whether it is uni$ue! and whether time! effort! and money were
expended in compiling the information..
)*+
/hen firms claim that there was a breach of confidential information!
they have to rely on this set of factors.
/hen a trade secret has been stolen! businesses also have to rely on the Criminal Code. 0owever! the 1urisdiction
says that information cannot be defined as property! since theft of information does not deprive the owner of its use.
)*+
2et! a few companies such as Air Canada were successful in using the theft and fraud provisions of the Criminal
Code. Air Canada argued that! because its competitor /est3et had stolen confidential information from its Intranet!
it was ,deprived of passengers and of the ability to compete effectively in the marketplace.! and won the case.
)*+
The fact remains that! in particular in Canada! the law does not provide much guidance for CI professionals. Thus!
we have to take a closer look at formal codes.
Formal Codes of Ethics
Industry Guidelines
SCIP
The %ociety of Competitive Intelligence 4rofessionals 5%CI46! whose motto is ,Economic espionage is the failure of
competitive intelligence.! has published the following ethical guidelines for CI professionals.
)7+
/hen 1oining! its
members voluntarily agree to abide by the %CI4 Code of &thics.
To continually strive to increase the recognition and respect of the profession.
To comply with all applicable laws, domestic and international.
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To accurately disclose all relevant information, including ones identity and organization, prior to all
interviews.
To avoid conflicts of interest in fulfilling ones duties.
To provide honest and realistic recommendations and conclusions in the execution of ones duties.
To promote this code of ethics within ones company, with third-party contractors and within the entire
profession.
To faithfully adhere to and abide by ones company policies, objectives, and guidelines.
However, the Code does not address specific CI activities, apart from disclosure of information and confidentiality
requests.
[4]
Fuld & Company
Fuld & Company has also pulished its own !uidelines, "nown as the #$en Commandments of %e!al and &thical
Intelli!ence 'atherin!()
[*]
+. Thou shalt not lie when representing thyself.
,. Thou shalt observe thy companys legal guidelines as set forth by the legal department.
-. Thou shalt not tape-record a conversation.
4. Thou shalt not bribe.
*. Thou shalt not plant eavesdropping devices.
.. Thou shalt not deliberately mislead anyone in an interview.
/. Thou shalt neither obtain from nor give price information to thy competitor.
0. Thou shalt not swap misinformation.
1. Thou shalt not steal a trade secret or steal employees away in hopes of learning a trade secret!.
+2. Thou shalt not "nowingly press someone for information if it may jeopardize that persons job or reputation.
The Wade System
3nother !uidance for CI professionals is #the 4ade 5ystem of 'raduation of 5ources of Information(. In +1.., 6r.
4orth 4ade pulished a list of tactics and sources in descendin! order of ethicality.
[.]
+. #ublished material, and public documents such as court records.
,. $isclosures made by competitors employees, and obtained without subterfuge.
-. %ar"et surveys and consultants reports.
4. &inancial reports and bro"ers research surveys.
*. Trade fairs, exhibits, and competitors brochures.
.. 'nalysis of competitors products.
/. (eports of salesmen and purchasing agents.
0. )egitimate employment interviews with people who wor"ed for competitor.
1. *amouflaged +uestioning and ,drawing out of competitors employees at technical meetings.
+2. $irect observation under secret conditions.
++. &alse job interviews with competitors employees i.e. where there is no real intent to hire!.
+,. &alse negotiations with competitor for license.
+-. -iring professional investigators to obtain a specific piece of information.
+4. -iring an employee away from the competitor, to get specific "now-how.
+*. Trespassing on competitors property.
+.. .ribing competitors supplier or employee.
+/. ,#lanting your agent on competitors payroll.
+0. Eavesdropping on competitors e.g. via wire-tapping!.
+1. Theft of drawings, samples, documents and similar property.
,2. .lac"mail and extortion.
3ccordin! to 6r. 4ade the first seven methods are usually ethical and le!al usiness intelli!ence and the remainin!
thirteen are in a descendin! order of ethics or le!ality and are re!arded as industrial espiona!e.
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"The Bible of BI Ethics"
&!ideria, a CI consultancy ased in 7aris, aides y the code of professional conduct of the 5CI7, and has also
developed a ile of <I ethics, which !ives an indication of what to do and not to do in +, contentious situations)
[/]
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Corporate Codes of Ethics
Companies should always have their own code of ethics to give guidance to their employees and avoid unethical
behaviours. Unfortunately, corporate policies addressing CI are sparse and often woefully inadequate.
[4]
nd yet,
these play an important role, since they can lead to a powerful personnel and cultural control within the company.
!he organi"ational culture can influence the way the practitioner conducts themselves when faced with ethical
decisions. #esearch has shown that an organi"ation that has a strong ethical environment where there is support
from management, and there is training and guidance on good and bad practices help C$ practitioners to refuse not
to engage in any unethical practices because they feel they have support from top management and that they will not
get punished for their actions. Conversely this would not be the case in an organi"ation with a wea% ethical
environment.
[&]
good e'ample of a corporate code of ethics is the one developed by (uld ) Company
[*]
+
Just the Facts - Ethical Policies for Fuld & Company - Employees and Contractors
Begin telephone calls by !" as#ing your questions$ %" &hen as#ed to identify yourself' gi(e your full name' and )"
if also as#ed where you are calling from' state *Fuld & Company'+ or the Fuld subsidiary you may be calling from'
," and the company phone number or direct dial phone number as well' when as#ed or when you need to recei(e a
call bac#$ -e(er misrepresent yourself$ .o not ma#e a false statement$
It is not necessary to be specific regarding identification of the client or the purpose of the pro/ect with a
source about the pro/ect' but it is our policy to gather information in a truthful' professional and ethical
manner$
0ou can identify Fuld & Company or a Fuld subsidiary as a firm that does industry analysis$ If you are as#ed
at some point in the con(ersation to identify the nature of your business' state that you wor# for a research' a
consulting firm' strategic or business analysis firm' or another phrase that accurately describes the (arious
ser(ices we offer$ If appropriate refer the source to the Fuld or subsidiary &eb site$
-e(er induce or pressure a source to disclose information they ha(e specifically categori1ed as proprietary'
confidential or a trade secret$ 2a#ing use of information you #now to be confidential is illegal and unethical'
regardless of the manner in which you obtained the information$
If you belie(e information has come into your hands illegally' or through someone who was brea#ing a
confidentiality agreement when disclosing the information' bring the information to the attention of your
Pro/ect 2anager$
-e(er disclose a client3s name to a source or to anyone outside the firm$ 4nless you are told otherwise'
consider client confidential' and do not discuss pro/ects' clients or pro/ect information with anyone outside
the company or in public places$
.o not pay a contact for information' unless a Pro/ect 2anager at Fuld & Company has appro(ed that
payment in ad(ance$ 5mall honoraria' when paid' are usually limited to doctors or other professionals$ 0ou
are ne(er to pay a competitor3s employee"$
-e(er tal# directly to a client without first recei(ing permission from the Pro/ect 2anager$
-e(er remo(e pro/ect information from Fuld & Company offices' including papers' data dis#s or other
pro/ect-related information' unless you ha(e first recei(ed permission to do so from the Pro/ect 2anager$
2ost importantly' conduct yourself in a professional and ethical manner$ 4se common sense$ If you belie(e
your actions in gathering information are questionable' it is li#ely that they are$ 6s# your Pro/ect 2anager
for guidance and support$
7emember' the manner in which you conduct yourself is not only a reflection on you as a professional' it also
reflects how Fuld & Company is (iewed by potential clients and others in the mar#etplace$ 8ur reputation is
important' so please act accordingly$
Personal Ethical Considerations
,andling ethical situations can be difficult for many C$ practitioners especially when there is no specific conduct
that states what to do for a given situation. !here are several methods that can help confront the ethical situation+
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Three Tests
The Harm Rule
According to Leonard Fuld
[5]
, the quickest way to ind [whether you are ste!!ing o"er the ethical line] is through
the Harm Rule#$ % will not do anything that may now or in the uture harm or em&arrass the cor!oration'#
The ()ut *heck(
The )ut *heck# is one+s instincts' % the decision does not eel right, or makes your stomach uneasy ,hence the
term )ut *heck#- then the decision may &e the wrong one' .ten instincts should lead someone to their ultimate
decision, &ut remem&er not e"eryone who uses their instincts to make decisions will end u! choosing the same
decision' This is a result o !eo!le ha"ing dierent educational, cultural, and !roessional &ackgrounds' The gut
check does not re"eal the right or wrong decision it !ro"ides *% !ractitioners a way to make decisions &ased on their
comort le"el'
[/]
The 0u&lic 1isclosure Test
The !u&lic disclosure test is a test the can hel! a *% !ractitioner assess the decision they would make in an ethical
situation' The *% !ractitioner would !ose the ollowing question to themsel"es$ 2ould % eel comorta&le with the
decision i it &ecame !u&lic3#' This is a good litmus test to decide whether the !ractitioner can li"e with the decision
knowing that other !eo!le would &e aware o what he or she did'
[/]
4ariants o this test include questions such as$ 2ould % like my amily to know a&out it3# Herring, a 567year
"eteran o the *'%'A', uses what he calls the mommy test#$ % % do this, will my mommy &e ha!!y with me3#
[8]
Ethical Frameworks
0ersonal ethics is de!endent on one+s own !ersonal history codes' The ollowing ethical rameworks can hel!
structure one+s thinking'
[9]
:tilitarian ;thics
2hen assessing the ethics o an action, utilitarianism only considers its result' To &e ethical, the action must yield
more o"erall &eneits than it causes harm' The e"aluation should consider harms and &eneits that accrue to the
community at large, i'e' all im!acted stakeholders' Howe"er, one limit o utilitarianism is that it can &e "ery diicult
or e"en im!ossi&le to orecast the total &eneits and harms that may &e caused &y an action'
<antian ;thics
For <ant, an action is ethical i it meets certain undamental im!erati"es, regardless o its results' First, all actions
must res!ect human rationality' <ant also deines the ollowing categorical im!erati"e$ all humanity should &e
treated as an end and ne"er as a means only'#
4irtue ;thics
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Virtue ethics can be considered on two different levels.
The first is the individual perspective. This theory is the most frequently used perspective. Virtue ethics focuses on
the question: what kind of question should I be? rather than what actions are riht?. It assumes that people
pursue an ideal end and that they pursue and maintain virtues that they have identified as promotin the ideal end.
!hether one defines wealth creation or personal fulfilment as the ideal end of business activity will lead to the
definition of different virtues.
The second perspective is based on the community. " ood implementation of this theory would be to ask yourself
whether you would be comfortable e#plainin your action to the eneral public. This is a ood framework since it
involves takin into account the different virtues of all the individuals that make up the community.
The $%I& 'odel
(arren $harters
)*+
suests a framework that interates these three theories into one model: the $%I& model:
The $%I& model applied to the question of misrepresentation by omission
%arm
Very difficult to assess the potential harm resultin from misrepresentation by omission
Individual as end
"n act of omission appears unethical: the individual rationality is not respected
&ersonal virtues
%onestly is considered as a noble virtue by many. Thus, misrepresentation by omission should be rearded as
unethical.
$ommunity virtues
If the community at lare is considered, wealth creation cannot be seen as the end of business activities. It is also
rearded as a means of buildin community and promotin self-development. %onesty will also considered as a
virtue. $onsequently, misrepresentation by omission is unethical.
The use of the $%I& framework leads us to conclude that $I professionals should not misrepresent themselves, even
by omission, since this practice is considered as unethical by more than one theory.
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These different sources of guidance can provide good indications to CI practitioners that their activities are ethical
or unethical. However, using several sources could lead to conflict. To protect themselves, CI professionals should
always consider the more stringent standard should prevail, be it dictated by the CHIP model or a corporate policy.
Cases of Organizations accused of Unethical CI Practices
The paradox of competitive intelligence is that people tend to hear about it only when operatives decide to play
secret agent. Cases of organizations sued for corporate espionage are numerous.
Oracle
The most extreme example probably dates from !!!, when "racle wanted to investigate two research groups that
supported #icrosoft during the antitrust trial. The detective agency hired by "racle attempted to buy garbage.
"racle discovered that the two organizations were misrepresenting themselves as independent advocacy groups
when they were in fact funded by #icrosoft. $arry %llison, "racle chairman, seemed to thin& that the end 'ustifies
the means, as he declared( )I feel (ery good about what we did$ *+, 2aybe our in(estigation organi1ation may ha(e
done things unsa(oury' but it9s not illegal$ &e got the truth out$-
*.!,
WestJet
/ Canadian example of unethical CI practice is 0est1et.
*..,
In /pril !!2, /ir Canada filed a 345million lawsuit
against rival 0est1et, claiming that some 0est1et6s officials logged on to /ir Canada6s internal employee5only
website 27,87! times over a .!5month period, and used that information to ma&e decisions on flight load
schedules. 9ased on this confidential information, 0est1et decided to drastically slash service out of the Hamilton
airport and move it to Toronto. It also ad'usted other routes, including some to the :;. 0est1et later settled with /ir
Canada, issuing an apology to its rival and paying the airline 34.4 million in legal fees and donating 3.! million to
charity. <urther to the lawsuit, Hill, one of the founders of 0est1et, resigned from his position as vice5president of
strategic planning in 1uly !!2.
*.,
SAP
/ very recent example is "racle filing new charges against ;/P in 1une !!= in the corporate espionage case
between the rival enterprise software vendors, which started in #arch !!=.
*.7,
"racle claims that ;/P6s
Tomorrow>ow subsidiary had downloaded large amounts of support material and software from an "racle website
intended only for paying customers, and that ;/P has distributed one of "racle6s patches as its own.
Hewlett-Packard
"ne of the scandals that have received the greatest media coverage in recent years is the HP lawsuit, which is still
unfolding. In !!4, Hewlett5Pac&ard sued his former ?P, @arl @amb, for 3.!! million. HP claimed that @amb had
betrayed the company and appropriated its trade secrets to launch his own T? company. @amb filed a countersuit in
1anuary !!=. He not only denied stealing trade secrets but also claimed that he was as&ed by HP to gather
)confidential information- on Aell, whose entry into printers had threatened HP6s most lucrative line of business. In
!!, the CI unit hired @atsumi Iizu&a, who was a president of Aell 1apan until .BB4, and still had a lot of
relationships inside Aell. Iizu&a allegedly sold HP information on Aell6s plans to enter the printer business. The CI
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unit was able to get information about printer models, specifications and prices, several months before their launch.
Kamb also accused HP of using pretexting, the practice of obtaining information by masquerading as someone else,
to get his private phone records.
[1!
Common Misconceptions about CI revealed by these Cases
"he HP story highlights a number of misconceptions about competitive intelligence, that generally relate to the
myth that competitive intelligence is about spying.
[1#!
$%istrust your employees first&
$'herever money is exchanged, so is information&. 'henever a business transaction ta(es place, information is
made available to competitors. )mployees can give out information, but it is very li(ely that it is already available
anyway.
$)veryone needs a *deep throat+&
,ou don+t need to have a deep throat informing you on competitors. "here is enough information publicly available.
-. is about putting together and analy/ing fragments of information.
$%umpster dive first, thin( second&
)ven if rifling through a competitor+s garbage might be legal 0provided it is on public property1, it is not the right
place to find good information. 2egal and ethical ways, such as attending trade shows and conferences, are li(ely to
be far more informative
$.ntelligence at arm+s length is good for business&
"he -. department should report directly to the decision3ma(er. .f requests from the 4oard or -)5 are filtered
through many hierarchical levels, the message is li(ely to be distorted and misunderstood. .n HP+s case, it seems
that the message that was conveyed was that the ends 6ustify the means.
$-owboys, cowboys everywhere7&
-ompanies need to establish guidelines for their employees. "hey have to communicate these guidelines through a
comprehensive training and ma(e sure the limits are understood.
Conclusion
-. has yet to establish clear3cut ethical guidelines for ambiguous situations. "his is a challenge for -. practitioners,
companies, and governing -. bodies li(e 8-.P to try to resolve. .t is up to them to wor( together to reach
agreements on how to handle and manage misrepresentation, client conflict, and an organi/ation+s ethical culture to
help improve the state of ethics in -.. .t is an important issue to collectively wor( towards to clear any ethical
ambiguities and to avoid negative publicities that can damage the image of -.. .n the meantime, ethical issues can
be confronted using such methods as the -H.P model.
"he argument has been made that companies that employ unethical practices will have a competitive advantage
over those who limit themselves to ethical activities. However, the competitive advantage of -. does not consist in
the information collected and the way it is collected, but in the synthesis and analysis of the collected information.
-onsequently, and as shown from the cases presented above, unethical -. practices are not worth the ris(.
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13. %ander), Tom: "racle e(tends ,P espionage charges; "$:$et :B, 4 ?8ne 200'
14. "arc*aver, $ic*ola): The Trail of HP, , Prete(t $or -evenge; (ort8ne, "ol. 199, I))8e 11, 11 ?8ne 200'
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