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18 January 2008

Questions of legality of intelligence in the commercial world

We frequently encounter those in the academic and business world which have little grasp of the applications of intelligence to the commercial world. These problems have not been helped by the distractions of discussion regarding economic espionage, directed by nation-states against particular industries. While the latter crimes do occur, and frankly have since the days of the first corporate entities of the East India Companies (Honorable or Dutch, take your pick), modern competitive intelligence is however a far different animal. And while any corporate entity may itself also commit a crime, there is quite a gulf between the examples that detractors might point to, and the standards which a profession establishes for itself in order to inculcate in its practitioners. Herein lies the heart of the frequent disconnect between intelligence professionals and their counterparts on the other side of the boardroom table.

This is not a new phenomenon, by any means. It has been our contention that the entire practice of commercial intelligence has a long and storied history that has been given short shrift, largely due to the influences of consultants and others seeking to brand their names onto this “new” thing that the re-discovered. While this may be a good way to sell books, and to organize conferences, we feel that it has greatly hurt the profession’s development and legitimization. Like national intelligence in the interwar years, it is too easy to wrap up a “new” experimental function like a business intelligence / competitive intelligence unit, particularly when budget cuts come rolling around. The taint of controversy has too often provided convenient ammunition as cover in such situations. Unfortunately, the very defense against these largely manufactured controversies is the same history that has been so deliberately discarded in favour of the branding of novelty.

Thus it seems we are doomed to watch that fight replayed over and again in the gulf of ignorance that has been the result. Yet the legitimacy of these units has long been settled law, among the oldest questions in the profession of intelligence to come before the bar. We cite a 1916 publication by the United States Bureau of Corporations, Trust Laws & Unfair Competition. (courtesy of the Government Printing Office), which references the matter (for American law) thusly:

Before entering the final decree in United States r. American Tobacco Co. et al the Circuit Court for the Southern District of New York considered a request to enjoin the defendants "from espionage on the business of any competitor, from bribery of employees of such competitor, and from obtaining information from any United States revenue official." Lacombe, J., denied the request, saying: “Why any one Individual or corporation engaged in this business may not acquire such information as he or it can legitimately obtain from private or public sources as to the business of a competitor we fall to see. When illegitimate methods are proved, they may be dealt with.”

We would wish to see that opinion more widely promulgated and discussed, in order to defeat the pseudo-legalistic arguments that have lately come into fashion to justify short sighted decisions that managers are unwilling to take responsibility for themselves. We think that such a changed calculus may actually alter those decisions in a marked way – or perhaps at least prove the unsuitability of certain ill informed individuals for the roles given to them in the complex decision-making environment of the modern corporation.

The loss of the history of the intelligence profession has had terrible consequences to its practice and evolution. It is long past time serious scholars begin to address these failings, in a manner that advances the literature of the field in areas of direct relevance to the practitioner.

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