Jessie G Taft
DL Seminar | Legitimizing Lies
Updated: May 20, 2022
Individual reflections by Pradyumna Yogan, Jialin Luan, and Janet Liao (scroll below).
By Pradyumna Yogan
Lies are not new to this world. They have probably been existent ever since humans developed speech and began to have a theory of mind. Legal discourses have mostly talked about how the law should deal with lying. Courtney Cox, an associate professor at Fordham Law School, spoke about her research on ‘Legitimizing Lies’. She started by introducing us to how lies have been associated with morality or the ethical sphere and the law sphere. The debate has always been about why lying is wrong or right given the circumstances. The law sphere has important implications regarding what questions one should be asking next and why. The traditional setup has mostly reduced the complexity of the law’s responses to a lie.
Courtney revisits the definition of a lie and speaks about what’s missing in that definition. She touches upon the necessity of the intent to deceive as a missing component of a lie and asserts that it’s incorrect to conclude that the wrong makers are irrelevant at all times. She further states that a statement can’t be simply determined as a lie just because it's morally wrong. The interconnectedness of lies, misleading statements, deceptions, and deceptive practices shows that every lie is a form of deception.
Courtney dives deeper into her research through a case study on trade secrets to show how law sometimes accepts lies as a legitimate option for fulfilling legal requirements. She highlights the section of the federal and state trade secret statutes that say the owner of a trade secret might need to take reasonable measures to keep such information secret. She argues that this can be an influencing factor in law causing the trade secret owners to lie. It was interesting to note how Hollywood producers end up leaking multiple potential endings of a TV series to confuse the public as to what the real one is. In certain cases, deception might be the best way to maintain secrets or protect information. She provides an example of how MITRE helps businesses develop threat models and defensive methodologies in keeping their data secure. Companies tend to use deception to trick hackers during a cybersecurity breach. Courtney also took us through an example of a company using “honeypot” as a deception mechanism to identify the employees leaking information to competitors. It was interesting to observe an example that she provided in which the court accepted a plaintiff's argument that the use of a "honeypot" to protect their trade secret was evidence of resorting to reasonable measures.
In this seminar, Courtney very well articulated how, in legitimizing certain lies, the law considers lying as one that could be used for both a good and bad cause. However, she poses an important question on how should we lie. It will be interesting to observe the consequences of lying, legally or morally, in various circumstances not just limited to protecting trade secrets, cybersecurity, or maintaining competitive advantage.
By Jialin Luan and Janet Liao
In this seminar, Courtney Cox, an associate professor at Fordham Law School discussed her recent paper ‘Legitimizing Lies’. Throughout the seminar, Courtney spoke about the definition and debates of lies, what’s missing in the current definition, how should we lie, what do we do , and forward-looking exploration of this topic with the class.
For years, legal scholars have focused on whether or not the law penalizes or allows lies, Their Widespread presence of lies has heightened traditional debates about how the law can and should respond to lies. There are questions about increasingly right with attention to police brutality and improper investigative methods, whether the law should be tolerating certain lines that are not punishing but rewarding in a de facto way. Most of the literature online and a lot focuses on lying in specific contexts such as integrity patients (IP), contracts, negotiations and advertising. The bottom line of the topic is that this kind of framing is too simple. And at the law the reaction line can be actually much broader than that. And the second has important implications not just for how people think about the law in relationship in line, but also what question we should be asking next. What are the important questions that we should ask about line and related concepts?
The definition of lies starts with P (value proposition) which can be true or not. And Courtney mentioned that there are three elements contributing to a lie: The liar states the proposition, the liar thinks the proposition is false or probably false and the liar presents P as true in the warranting context.
However, one of the big things that's missing is an intent to deceive right and intent to impart a false belief and intent that the liar intends the audience to believe the truth of the matter. Another thing that we often see is that a lot of people include moral or legal judgment about whether the practice is wrong. The thing is that it's improper to figure out or think about what the appropriate relationship between the law and lying, whatever normative views are. Courtney also talked about examples about wrong makers where audiences have the right to know the proposition and have reliance interests. In addition, people are always confused about lies, deceptions, BS, deceptive practices and misleading and all of these have some overlaps. Most of these might fall into a larger bucket that Courtney is concerned with called deceptive practices, which you present as true represent or imply right that capture is merely misleading statements.
Courtney demonstrated how the law legitimizes lying by using trade secrets as a case study. Trade secret law provides a remedy for the theft of a company's confidential information. But only if a company has taken "reasonable precautions." All of these precautions are deceptive, and many of them are undoubtedly based on lies. This is in line with current philosophical studies of lying. "Reasonable precautions" sets a floor, but not a ceiling, for the measures that may be taken to safeguard a trade secret. She also covered some other case studies such as SolarCity and PureCity. These case studies demonstrate that lying is not uncommon. It is similar to other dual-use technologies in that it can be utilized either legally or illegally. And because of that it is becoming increasingly urgent to develop a positive, pragmatic theory of lies and deception in the law.
Because lies and deception frequently damage the truth, it is a prevalent assumption that the law typically disfavors falsehoods and deception. There is a lot of discussion over the misunderstanding concerning the default or default rule. There are often two agreements on this subject. Is the default setting in law to dislike lying and make exceptions by allowing some? Or Is the law, despite its seeming devotion to truth, generally neutral, policing specific lies and deceptions? And, given the law's commitment to truth, which default should the law use? These two defaults can be both descriptive claims about the law - this is how the law is, as well as normative claims about how the law ought to be.
The anti-corollary states a view that law justice disfavors or penalizes lies, and tolerates lying as an exception to the rule. They concentrate on a very narrow idea that leaves out much of what the law considers to be lying. On the other hand, those who believe in neutral default, state that when the law penalizes lying or deception, it is because the law has chosen to safeguard that particular channel of communication, protecting the integrity of those channels. The reason being that some channels are those in which lies cause direct harm. Others like perjury, which involves social practices that rely on honesty for its effectiveness. Lastly, routes involve social practices that rely on honesty for their effectiveness (e.g., perjury). Finally, misinformation also results in additional cost in many commercial deceptions: deceptive advertising not only harms customers but also costs parties money to defend themselves against deception.
The trade secret case study will not give us enough to resolve this debate. But the more important question is, how should we lie? If people take lying as a tool and particularly a security tool, the argument for morality comes in. Courtney shared some characteristics that influence whether a deceitful behavior is morally justified or at least falls within this grey zone: whether this behavior has an entrapment structure, whether the deceptive activity's content is not material, whether it erodes trust for the channel of communication and degrade the working environment, whether “target lacks a reliance interest in what is said or implied; and where signaling mitigates the risk of harm”.
In conclusion, the seminar presented the definition and debate about lie, revealed what is missing in the current definition and further illustrates how law legitimizes lying through the trade secret case study. Indeed, the need for a positive, pragmatic explanation of lies and deception in law is becoming more pressing. Traditional focus, which rely on prohibitions and exceptions, ignores key practical issues that arise when one considers lying as a legitimate means of protection. As the issue of how to balance internet disinformation and security surveillance grows increasingly urgent, the practical questions of how to lie ethically and legally are becoming more crucial.
By Kaiyuan Deng