Transparency vs The 5th Amendment

The provocative video below argues that (in the US) one should never talk to the cops. If the police ask you questions or seek to interview you, you should refuse on the basis of your 5th Amendment right not to be a witness against yourself.

That advice makes sense for individuals when dealing with uniformed police officers.

What About Corporations?

But the advice starts to wear thin when "law enforcement" are guys who wear suits, and they are posing questions to a corporation. If a corporation publicly refuses to "talk to the cops," the corporation must worry about its public image.

The professor in the video below makes a compelling case that anything a person says to law enforcement can be used as evidence against the person. And, logically, a "person" includes a corporation.

Many traditional lawyers advising corporations therefore seek strictly to limit what their clients say to government or to the public about anything that could be controversial. Traditional lawyers seek to limit the records (like email) retained by their clients so the records can't be used against the clients.

Is the Information Age Different?

I wrestle with these topics in a course I teach at the SANS Institute, called "Law of Data Security and Investigations." In my course, I promote an attitude of openness and transparency on the part of corporations. I argue that in this age of information, #whistleblowers and WikiLeaks, a corporation is wiser to err on the side of opening up and cooperating with government.

I promote the idea that copious electronic records are, on balance, good for a corporation rather than evidence that will be used to convict the corporation.

In the course I cite Don Tapscott's book The Naked Corporation, which argues that an #investigator can find records (even ones that supposedly have been erased) on just about anything if she looks hard enough.

I therefore argue that in this Internet Age a corporation fares better by titling toward transparency and adopting an attitude of cooperation with law enforcement.

Some learned lawyers disagree with me. I had an in-house corporate lawyer very politely declare (in a meeting on electronic record retention at a large healthcare entity) my argument, my vision, to be "bunk." :-)

What do you think?

--Ben´╗┐
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