Ask the Ethicist: Is the Public Domain Fair Game?

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By the Apra Ethics & Compliance Committee

Dear Apra Ethicist,

One of our organization’s volunteers recently brought me a printout of a major donor’s financial information that they’d pulled from the Pandora Papers. They thought it would be helpful to bring to an upcoming lunch meeting where they and the managing gift officer will discuss a big naming gift with the donor. I didn’t feel entirely comfortable passing the information on to the gift officer, so I told the volunteer that we couldn’t use leaked materials in gift conversations. They said they understood, but we could at least add it to our database, which I’m also not comfortable with.

What are my ethical obligations with using this kind of information? If it’s in the public domain, is it fair game at this point?

Sincerely,

There for the Taking

 

Dear Taking,

You were right to tell the volunteer that the printout was not appropriate to bring to a donor lunch! While this kind of information can look attractive to philanthropic organizations who are working to identify how much a donor might be capable of giving, there are ethical concerns about utilizing such resources in our research efforts. The best question to ask ourselves is: is this information intended for public consumption?

The precedent for making private or classified information public was most famously set by Wikileaks. Following additional instances of leaked documents and confidential information (the Panama Papers in 2016, Paradise Papers in 2017 and the Pandora Papers in 2021), we run the risk of considering these files to be normal and exploitable sources. Additionally, the International Consortium of Investigative Journalists has collected many of the documents into an easily searchable database, which has been discussed in a previous Ask The Ethicist.

One significant point to bear in mind is that while leaked documents technically fall into the category of public information, they weren’t meant to be. Confidential table biographies created by your organization do not become free for use if they’re accidentally left behind after an event. Apra’s standard practices are to use only intentionally public sources of information in the course of prospect research and data collection.  

Leaked documents fall squarely in the do-not-touch category. But what about a donor’s Facebook profile? Their social media presence as a whole on Twitter, Instagram and so on?

A donor’s personal Facebook page can be a wealth of information that would inform relationship building and potentially a philanthropic ask. But we can’t know if they intend the information to be public. Although privacy settings allow us to lock this information down, if a user doesn’t know how to adjust these settings correctly, we could get access to information they don’t intend to be public.

Where does that leave the prospect researcher? Remember: the availability of information in the public domain does not drive the collection of data, nor supersede ethical principles and practices in its use. While social media isn’t as cut and dry as leaked documents, it’s better to err on the side of caution when it comes to privacy. A donor’s business presence, like a company/public officer Twitter account or their LinkedIn profile, is a safer bet for research purposes.

Sure, there will still be gray areas. See the ongoing argument over the use of FEC political contribution data: FEC information is free and in the public domain, but under the United States’ Federal Election Campaign Act, information about individual contributors cannot be sold or used to solicit contributions. (Whether you locate this data yourself or it’s made available to you through one of your vendors, it’s neither ethical or legal to use FEC data for charitable solicitation purposes, including prospect research.)

Ultimately, while this sort of public information lends itself very well to prospect research, there are multiple reasons it’s unethical to use in our work. The Ethics and Compliance Toolkit is a good resource to use when reviewing or updating your organization’s policies and procedures. It may also be wise to consult with your general counsel. And of course, feel free to use the sources in this column and share it with your colleagues.

Ethically yours,

The Ethicist

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