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 operate with numbers. This is interesting and attracts the attention of readers.
Companies that produce such devices advertise their equipment and the range of services provided using the lie detector.
Every event, seminar, conference, exhibition dedicated to business security cannot do without discussing the polygraph issue. The opportunities that the polygraph provides in 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, testing, or examination in various publications.
Meanwhile, in law enforcement agencies, including the Ministry of Internal Affairs of Russia, 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 the methodology of its application are being revealed.
However, such an important, fundamental issue as the problems of legal regulation of the use of a polygraph in the activities of personnel departments and security services of commercial structures is overlooked. The principle is that if there is no prohibiting law, then such tests can be used. Of course, a polygraph is necessary in personnel work.
Its preventive, 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 when 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, state that the use of the polygraph in US banks reduced material losses by more than 20%.
This position can be agreed with, since the polygraph has been used in the US for a long time, and its use in the activities of commercial structures, including banks, was quite fully regulated by the legislator.
However, the figures cited by the author on the effectiveness of polygraph use in commercial structures in Russia 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 all the 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 for private business. All this requires the closest attention of lawyers and a very cautious attitude to the widespread use of a polygraph.
Banks, firms, 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 such events are carried out, 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 test is always strictly voluntary. However, some companies include a clause on consent to polygraph tests in their employees' employment contracts. Thus, this event becomes mandatory.
Undoubtedly, a polygraph can be useful in hiring and in conducting internal investigations.
But so far no one — neither legislators, nor psychologists or sociologists — has established the limits of admissibility in posing questions during such a polygraph test.
With the help of a polygraph, you can learn a lot about the previous activities of the subject being questioned. Particularly dangerous is the disclosure of information that constitutes a commercial or 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 finding out with the help of polygraph testing the attitude to social and political problems, loyalty to the existing system, attitude to religion, sexual orientation.
Obviously, 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 harder 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 unwanted employees using polygraph tests.
This is also possible with complete lack of control, when anyone can be checked and on any issues.
Unlike our country, the problems of using a polygraph in solving personnel issues for both government and private structures are clearly regulated in a number of foreign countries, including the USA.
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 «Directive 84 on National Security», adopted in 1983, polygraph testing was introduced for certain categories of civil servants.
In 1985, the US adopted the «Polygraph Examination Act for All Possible Leaks of Classified Information», which regulates in detail the procedure, conditions for conducting such tests, and the categories of persons subject to such tests.
Along with this, the lack of control over polygraph tests in private business led to massive violations of human rights. In connection with this, in 1988, the «Polygraph Testing Protection Act for Employees» was adopted.
Circumstances of employee polygraph testing.
According to the aforementioned law, an employer may ask 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 missing money or valuables;
— if the employer has reasonable suspicions about the employee's involvement in theft, based on witness statements or discrepancies in documentation.
In all of these cases, the employer must provide the employee with reasonable written notice 487 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 whether this type of test is acceptable for him.
Each state has its own laws governing the use of the polygraph in work and official activities.
For example, in New York, it is prohibited by law to use a voice stress analyzer when hiring.
The legislation of the state of Georgia (1985) provides for the presentation of questions that are supposed to be clarified in advance in written form.
The state and city of Baltimore exempt employees of the federal government and its agencies from testing, and also exempt lawyers in government service and private practice.
The same law also allows correctional facility guards to be polygraph tested. Virginia law does not allow questions about a person's sex life to be asked unless the person has been charged with a sex crime.
There are a number of restrictions on the topics of the questions that can be asked.
When conducting a polygraph examination, the following issues should not be addressed:
— religious beliefs, membership in religious organizations;
— beliefs and views on social issues;
— information about 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 of the rights, privileges, or immunities guaranteed by the Constitution and laws, shall be liable to the party injured 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.
Which organizations provide polygraph testing services?
These are primarily manufacturers and suppliers of imported polygraphs, which not only manufacture and supply devices, but also conduct various types of polygraph tests and train specialists. Personnel checks are conducted by companies that select and test personnel.
Detective and security firms also provide such services. 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 the work in the field of polygraph application in the sphere of private entrepreneurship is coordinated and directed by the Department of Entrepreneurship Security 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-search activities of 1995, only some subjects of operational-search 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.
The Ministry of Education of the Russian Federation for teaching activities and issues 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.
The companies that manufacture printing equipment and the commercial structures where it is used employ specialists who come from government structures.
Some companies send their specialists abroad for training.
Some invite American specialists to conduct training.
There is no licensing for the training of 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 certain 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, and 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 thing applies to driving vehicles.
You can complete training in any commercial school, but the exams are taken and licenses are issued by the traffic police department of the Ministry of Internal Affairs of Russia. The use of a polygraph is one of such specific types of activity that are important for the state.
It seems appropriate that commercial structures that provide training in the use of polygraph devices at the level of state and international standards, carry out this work only after receiving the appropriate license.
However, examinations and issuance of certificates for the right to work with 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 of training specialists and conducting polygraph examinations, in particular, the Ministry of Internal Affairs of Russia.
As an option, it is possible to conduct 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 an urgent 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 structures that use polygraph tests in their activities, all interested parties.
It is necessary to determine which organizations can conduct polygraph examinations; clearly regulate the procedure itself and the order of their implementation; grounds for polygraph tests; restrictions on asking questions, etc.
This needs to be done as soon as possible, because the uncontrolled use of a polygraph in the activities of commercial structures not only violates the constitutional rights of citizens to privacy, but can also contribute to the disclosure of state and commercial secrets.