Polygraph and the law: it’s time to resolve issues of legal regulation.

Polygraph and the law: it's time to resolve issues of legal regulation.

POLYGRAPH AND THE LAW:

Olga Belyushina,
All-Russian Research Institute of the Ministry of Internal Affairs of Russia

Recently, a large number of articles have appeared in the press about the use of a polygraph (lie detector) in commercial structures in Russia.

The authors cite successful and entertaining cases from their own and other people's practice, and use figures.

This is interesting and attracts readers' attention.

Companies that produce such devices advertise their equipment and the range of services provided using the lie detector. Every event, seminar, conference, or exhibition dedicated to business security cannot do without discussing the polygraph problem.

The possibilities that the polygraph provides for personnel selection, periodic testing of personnel, and investigation of emergency situations are examined in detail. Various terminology is introduced into circulation.

A specialist working with polygraph devices is called a polygraphist in some publications, and a polygraph examiner or polygraph operator in others. The polygraph test itself is called a check, test, or examination in various publications. Meanwhile, in law enforcement agencies, including the Russian Ministry of Internal Affairs, this event is rightly called a «polygraph survey», as a type of citizen survey using technical means. Let's not argue with this: we are talking about the same event, despite the fact that even the concepts themselves carry different legal consequences.

Recently, much has been said about the practical effectiveness of the lie detector, and even some aspects of its application methodology have been revealed. However, such an important, fundamental issue as the problems of legal regulation of the use of the polygraph in the activities of personnel departments and security services of commercial structures is overlooked. The principle is: if there is no prohibiting law, then such tests can be used. Of course, the polygraph is necessary in personnel work.

Its preventive and deterrent effect cannot be denied. But at the same time, one must not forget about the constitutional rights of citizens (to work, privacy, personal and family secrets, protection of their honor and dignity, guarantee of freedom of conscience, religion, thought, speech, etc.) and trample on them. It is no coincidence that even in government agencies, including the Ministry of Internal Affairs, the use of a polygraph in resolving personnel issues is not regulated by law, despite the availability of trained specialists and equipment.

At the same time, the advertising brochures of companies producing polygraphs mention that their devices are used by the largest banks and private structures in Russia. The materials of the conference «Psychology and Security of Organizations», held at the Institute of Psychology of the Russian Academy of Sciences in October 1997, say that the use of a polygraph in US banks reduced material losses by more than 20%. One can agree with this position, since the polygraph has been used in the US for a long time, and its use in the activities of commercial structures, including banks, has been quite fully regulated by the legislator. However, the figures on the effectiveness of using a polygraph in commercial structures in Russia, cited by a number of authors, are an insufficient argument, according to which the use of a polygraph reduced material losses from 24.3% to 47.9% (depending on the year and region), since the regions, number and names of commercial structures where such tests were conducted are not indicated. There is enough equipment in the country, but there is a clear shortage of qualified specialists. If we consider that the polygraph works more effectively in Russia than in the USA, then it is even more necessary to regulate its use in commercial structures by law, to streamline the training of specialists and their licensing.

The legal vacuum gives rise to the lack of control over the use of lie detectors in business and human rights violations. At the same time, the heads of commercial structures and especially the specialists conducting surveys using a polygraph cannot be blamed for their activities, since there are no restrictive laws yet. At the same time, there is no licensed system for training specialists to work with a polygraph, or sufficiently tested methods applicable to private business. All this requires the closest attention of lawyers and a very cautious attitude to the widespread use of the polygraph.

Banks, companies, and large stores use polygraph tests when hiring employees and when conducting periodic monitoring of the professional activities of individuals associated with material assets (money, securities, goods), as well as with the preservation of commercial secrets. The polygraph is also used in various types of official investigations. Practice shows that when conducting such events, the legal rights and interests of citizens may be infringed. Every citizen has the right to privacy, personal and family secrets. It is also prohibited to collect, store and disseminate information about a person's private life without his consent (Articles 23, 24 of the Constitution of the Russian Federation). A polygraph survey is always strictly voluntary. However, some companies include a clause on consent to conduct polygraph tests in employment agreements with their employees, thus this event becomes mandatory.

Undoubtedly, the polygraph can be useful in hiring and conducting internal investigations. But so far no one — neither the legislator, nor psychologists and sociologists — has established the limits of admissibility in posing questions during such a polygraph test. With the help of a polygraph, you can find out a lot about the previous activities of the subject being questioned. Particularly dangerous is the disclosure of information constituting a commercial and even state secret. In the life of any person there may be moments that do not carry anything illegal, have nothing to do with his future work and which he does not want to disclose for moral, ethical or any other reasons, at the same time this can be revealed during a polygraph survey, which is completely unacceptable and violates the norms of law and morality in general.

A violation of human rights is the use of polygraph testing to determine attitudes toward social and political issues, loyalty to the existing system, attitudes toward religion, and sexual orientation. It is obvious that older people cannot fully move away from the stereotypes of behavior and interpersonal relationships that have developed in them. The more socially active a person was before perestroika, the more difficult it is for him to adapt to new conditions. With this approach, advantage in hiring is given to opportunists who do not have a clear life and moral position. And the majority of people with professional and life experience are left behind. The absurdity of this approach is obvious.

We cannot ignore the most banal issue — settling personal scores with undesirable employees using polygraph tests. This is also possible with complete lack of control, when you can check anyone and on any issues.

Unlike our country, the problems of using the polygraph in solving personnel issues, both for government and private structures, are strictly regulated in a number of foreign countries, including the United States. Here, the polygraph is used in cases where other methods of personnel selection, such as personal conversations, interviews, selection tests, psychological surveys, etc., are ineffective or require a long time.

In accordance with «National Security Directive 84», adopted in 1983, polygraph testing was introduced for certain categories of government employees. In 1985, the United States adopted the «Polygraph Examination Act in All Cases of Possible Leakage of Classified Information», which regulates in detail the procedure, conditions for conducting such tests and the categories of persons subject to such tests.

In addition, the lack of control over polygraph testing in private business has led to massive human rights violations. In connection with this, in 1988 the «Law on the Protection of Employees' Rights in Connection with Polygraph Testing» was adopted.

According to this law, an employer may offer an employee working at his enterprise to undergo a polygraph test only under the following circumstances:

• during a special investigation related to material damage to the enterprise;

• when the employee had access to the missing money or valuables;

• if the employer has reasonable suspicions about the employee's involvement in theft, based on statements by witnesses or discrepancies in the documentation.

In all of these cases, the employer must provide the employee with reasonable written notice 48 hours before the polygraph test is administered, justifying the need for such a test.

This law does not apply to businesses that contract with the federal government for certain activities that are essential to the health and safety of the public.

If candidates are required to undergo a polygraph test when applying for a job at an institution or company, a clear rule is established that stipulates at what stage of the application review such a test is conducted. The candidate is warned in advance about the need to undergo a polygraph test in the questionnaire or advertising brochure of the enterprise, in connection with which he can decide on the admissibility of undergoing this type of test for him.

Each state has its own legislative acts regulating the use of a polygraph in labor and official activities.

For example, in New York it is illegal to use a voice stress analyzer during employment interviews. Georgia law (1985) requires that questions be submitted in writing to be investigated in advance. State and Baltimore city laws exempt federal government employees and agencies from testing, and also exempt lawyers in government service and private practice. Under the same law, correctional facility guards may be tested on a polygraph. Virginia laws do not allow questions about the sexual life of the interviewee until he or she has been charged with a sex crime.

There are a number of restrictions on the topics of the questions that can be asked. The following issues must not be addressed during a polygraph examination:

• religious beliefs, membership in religious organizations;

• beliefs and views on social issues;

• information on views and practices in the sexual sphere.

If the rules for conducting a polygraph test are violated, a person who believes that he or she has suffered moral damages may take legal action. Section 1983 of the United States Code provides: «Any person who, under color of any law, regulation, rule, custom, or usage of any state or territory, deprives or causes to be deprived of any citizen of the United States, or other person subject to the jurisdiction thereof, any rights, privileges, or immunities guaranteed by the Constitution and laws thereof, shall be liable to the injured party in an action at law, in equity, or otherwise for due redress.»

Thus, the use of the polygraph in solving personnel issues is quite fully regulated by US legislation. The lack of control over its use in Russia allows us to identify a number of problems that require immediate legal regulation.

What organizations provide polygraph testing services? These are, first of all, firms that manufacture and supply imported polygraphs, which not only manufacture and supply the devices, but also conduct various types of polygraph tests and train specialists. Personnel checks are conducted by firms that select and test personnel. Similar services are also provided by detective and security firms. Security services of large firms and banks conduct personnel checks for their own purposes. A series of publications in the Trade and Industrial Gazette reported that work in the field of polygraph use in private entrepreneurship is coordinated and directed by the Business Security Department of the Chamber of Commerce and Industry of the Russian Federation.

I would like to know on the basis of which legislative act this is done? On the basis of the Federal Law on Operational Investigative Activities of 1995, only some subjects of operational investigative activities use the polygraph (there are departmental instructions). They also train specialists who receive certificates for the right to work in this area. Some companies providing services for training specialists to work on a polygraph have licenses from the Ministry of Education of the Russian Federation for teaching activities and issue certificates for the right to work with polygraph devices. What to do in such cases?

It should be noted that several independent schools for training specialists have developed in Russia. Specialists who came from government agencies work in companies that manufacture printing equipment and in commercial structures where it is used. Some companies send their specialists abroad for training. Some invite American specialists to conduct training. There is no licensing of the activity of training specialists and the work of these specialists in commercial structures.

It seems that the solution to this problem is possible by analogy with the existing practice of issuing certain types of certificates. The Ministry of Internal Affairs of Russia licenses some specific types of activities, the lack of control in the sphere of implementation of which can cause serious damage to the state and its citizens. Such as detective and security activities, possession of weapons, driving vehicles. Moreover, training, for example, to become a security guard, can be completed in a commercial structure, and a license for the right to work is issued by the licensing and permitting service of the Ministry of Internal Affairs of Russia. The same is true for driving vehicles. You can complete training in any commercial school, but exams are taken and licenses are issued by the traffic police departments of the Ministry of Internal Affairs of Russia.

The use of a polygraph is one of such specific activities that are important for the state. It seems appropriate for commercial structures that teach how to use polygraph devices at the level of state and world standards to carry out this work only after receiving the appropriate license. However, examinations and issuance of certificates for the right to work on polygraph devices for state and commercial structures should be carried out by one of the federal agencies that has accumulated sufficient experience and developed its own system for training specialists and conducting polygraph surveys, in particular, the Ministry of Internal Affairs of Russia. As an option, it is possible to carry out licensing of specialists on the basis of the Ministry of Justice of Russia.

In order to protect the rights of citizens and the state, there is a pressing need to develop a draft law on the polygraph with the participation of all interested parties: representatives of government agencies, lawyers, specialists, manufacturing companies, commercial entities that use polygraph tests in their activities, and all interested parties. It is necessary to determine in which organizations polygraph surveys can be conducted, to clearly regulate the procedure itself and the order of their implementation; the grounds for polygraph tests; restrictions on asking questions, etc. This must be done as soon as possible, because the uncontrolled use of the polygraph in the activities of commercial entities not only violates the constitutional rights of citizens to privacy, but can also contribute to the disclosure of state and commercial secrets.

In the Polygraph Library series in the Publishing House «World of Security» the book «Polygraph and Psychological Tests for Personnel Departments of Private Security Companies and Security Services» is published.

You can order this book at the following address: 111024, Moscow, Prud Klyuchiki St., Building 3. Tel.: 362-3446, Fax: 362-3445.

The World of Security. July 1998