Emails are a great window into what people are thinking and doing. They tell us a lot about attitudes toward life, business, and compliance. I had my own encounter with emails before testifying as a government witness in the Africa Sting cases.
It was during pre-trial preparation. The government had the emails my former employer turned over. Defense counsel had them too. Review them all, the prosecutors told me. Spend as much time as you need. Find the “worst of the worst” and be prepared to testify about them if asked during cross examination.
It was a dreaded task. In 2011, I was already three years sober. I was renewing my faith and repairing my damaged family life. So this look into my old emails was going to be a difficult journey back to a dark time.
I started by searching “bribe.” I don’t remember anything coming up. What I did find was a mix of code words where “pajamas” were prostitutes and “the Z” was a brothel in Europe where you could find a mix of multinational employees, intermediaries, and end-users.
Skip “bribes” during data searches. It’s the one word I didn’t use or hear in my decade in the field. As Preet Bharara, the U.S. Attorney in New York, recently said, “It’s very rare that you have a written agreement, where someone says, ‘I’ll pay you this bribe, and you do this favor for me.’”
Our communication bears witness to ourselves. How people joke, how they behave, outside the set of FCPA and other white-collar criminal issues, tells us about deep-seated values. I left an email trail when I violated the FCPA, including the exchange of corruptly obtained information on specifications for United Nations and Dutch Police contracts.
Those emails about the mechanics of my business were evidence of illegal conduct. But they weren’t the obvious fingerprints into my beliefs at that time. The emails that revealed what I was really thinking and doing back then were often about pajamas, the Z, and other exploits.
If that’s how someone in your organization is behaving now, even if not to my extreme, what might that tell you about their attitude toward compliance? Is a joke about a late night out, a visit to a strip club, or too much partying a measure of greater compliance peril?
My “worst of the worst” emails, and the decisions they showed me making, seem like a lifetime ago for me now, and are gratefully in the rear-view mirror. But those emails really did pull the curtain back on a lifestyle I will always regret. Reliving them in front of a jury and my sentencing judge was something I never could have imagined while typing away.
So yes, during cross examination at the Africa Sting trials, those emails did come up. Later, during my sentencing hearing before Judge Richard Leon, the DOJ described my cross examination as a “grueling process and experience.” Judge Leon also referred to the emails when he described my “outrageously egregious” conduct “by my own admission.”
Today’s compliance professionals live and work in an era of data analytics and algorithms. Those have value. But are we under-valuing the behavioral component, which is so often and authentically reflected in how we email one another?
While we might look for obvious signs and trails of wrong-doing, perhaps the more obvious behavioral fingerprints are inappropriate jokes or distasteful nights out with customers. But how people share and communicate when they think no one else is listening can tell us so much about attitudes toward compliance and a whole lot more.
Richard Bistrong is a contributing editor of the FCPA Blog and CEO of Front-Line Anti-Bribery LLC. He was named one of Ethisphere’s 100 Most Influential in Business Ethics for 2015. He consults, writes and speaks about compliance issues. He can be contacted by email here and on twitter @richardbistrong. He’ll be a speaker at the FCPA Blog NYC Conference 2016.