Have You Ever…?

If there's one thing guaranteed to make me smile during a long flight, it's those entry forms you must complete to be allowed into your destination country. You know, the ones that ask long lists of yes/no questions and provide boxes that are either disproportionately over‐ or undersized for the answers you're being asked to give. Enjoy them while you still can because many countries are replacing them with online pre‐approval processes, and in doing so, they're removing many of the most entertaining questions.

Sadly, my personal favourite from all my years of travelling, US Visa Waiver Form I‐94W, has already been retired. The more recent version was also a bit too sensible for my liking. It's the classic edition from the early 2000s that I really enjoyed. Readers who travelled to the US at that time may remember it as the green form that asked some wonderfully odd questions, like:

B. … are you seeking entry to engage in criminal or immoral activities?

C. Have you ever been or are you now involved in espionage or sabotage; or in terrorist activities; or genocide; or between 1933 and 1945 were involved, in any way, in persecutions associated with Nazi Germany or its allies?

Has anyone, I used to wonder to myself, ever answered “yes” to either question? If so, it's very likely they either did so by mistake or because they're auditioning to be the subject of the next Dunning and Kruger research project (see Chapter 6). Though, come to think of it, you can see why they might want to keep those people out of the country!

You'd be incredibly unlikely to find someone who, if they were being honest about their intentions, would answer “yes”. Apart, of course, from Mr Logic. But would anyone ever think, “You know what, I am seeking entry to engage in criminal and immoral activities. I wasn't going to tell you, but now that you've asked me that question, I can't possibly lie on the form”?

Immigration Logic

What was the point of those questions? Presumably, there was one. I'm a firm believer in a principle called Chesterton's Fence, which suggests that one should never make changes to processes or rules until one understands why they were put there in the first place. Since I don't understand the logic, I'm reluctant to be overly critical. However, I've had a lot of time to think about this while flying to the US, and decades later, it's still unclear what it might be. I can see that the questions could strengthen the legal case against someone who subsequently turned out to have been travelling to the US for those banned purposes, but… I could go on, but you get the idea.

The reason I'm reminiscing about my failure to understand Form I‐94W isn't that I've suddenly worked it out. Instead, it's so that I can highlight how the thinking behind it – the immigration logic that I still find so baffling – is frequently used in other contexts, including compliance.

As we've seen, sometimes, when you change contexts, things that didn't make sense suddenly do. Applying what I call “Form I‐94W Logic” to compliance isn't one of those. I'll explain what I mean by highlighting some of the implicit presumptions that result from using “immigration logic” and why they're not necessarily a good thing.

How “Bad” People React

The first implicit presumption of Form I‐94W Logic is that “bad” people can be swayed by “due process”, which means the rules and norms that the rest of us follow. Hence they'll do what I suggested they wouldn't and feel compelled by the persuasive powers of Form I‐94W to tell the truth about their evil intentions.

While we might smile at someone intending to engage in criminal or immoral activities ticking the “yes” box on the immigration form, many compliance processes use precisely that logic. Not only – as we will see – are these processes designed around a flawed presumption about the risk we're seeking to mitigate, but they're also often not very effective.

Someone deliberately setting out to break the rules isn't going to listen to what we tell them on a training course. The whole idea of training only works if, on some level, the person being trained wants to learn. Intentional rulebreakers are also not going to read policies; unless, as we'll see, they're doing it to find loopholes or “air cover” for noncompliance (see Chapter 22). I'm reminded of that quote from the judge in the Adoboli trial: “the real characteristic of the rogue trader is that he ignores the rules designed to manage risk” (see the Introduction).

People intent on doing “bad” things are likely to think they are “above the law”. Like former UK Prime Minister Boris Johnson, who, while in office, showed a disregard for standard conventions and resigned after a series of ethical scandals. Tellingly, a 17‐year‐old Johnson was described in his school report, by his then Headmaster Martin Hammond, in the following terms:

If we want to prevent the “bad” people, we will need different tools than the ones we use for “good” people. Literally and metaphorically, they're not playing by the same rules as the rest of us. Arguably, they're not even playing the same game.

That doesn't mean that everything we currently do is ineffective. Some techniques we deploy that work on “good” people will also help deter “bad” people. But others won't, and some might even be counter‐productive. To quote the famous line from the movie Jaws, “You're gonna need a bigger boat”. Otherwise, we risk approaching it like the question on Form I‐94W that no one will answer in the affirmative. It seems sensible in theory but risks failing in practice.

“Bad” People vs “Good” People

The second implicit presumption of Form I‐94W Logic is that to achieve compliance, we need to eliminate human risk by stopping the “bad” people from doing “bad” things. To be fair to Form I‐94W, it doesn't go that far, but it's pointing in that general direction! On one level, this is, of course, true. Whenever things go wrong in organisations, a human component is involved; either causing the problem or making it worse. Whenever things go badly wrong – the types of incidents where the CEO resigns or gets fired – the narrative is usually about an individual or group of individuals who are responsible.

But not all “bad” things are caused by “bad” people. Though perhaps it's not surprising we tend to think this way. After all, it's the essence of children's fairytales which present us with a polarised world where Harry Potter (good) fights Voldemort (bad), or Cinderella (good) outwits the Wicked Stepmother (there's even a clue in her name: bad). In the real world, it's not that simple. We also need to target the “good” people who do “bad” things.

In Chapter 4, I introduced Professor Yuval Feldman, the author of The Law of Good People,¹ which explores why, rather than writing laws for bad people, we should write them for good people. As I was beginning my journey of bringing behavioural science to ethics and compliance, it was a book that hugely inspired me; it continues to do so today. In an interview talking about the book, Professor Feldman explains:

We're misdiagnosing the problem by considering compliance as needed to stop “bad” people from doing “bad” things. There are “bad” people who deliberately set out to do the wrong thing, but they are a tiny minority. As are the people who will always do the right thing, who won't cause you an obvious compliance problem, but are an outlier worth keeping an eye on from time to time.

The vast majority of people sit between those two extremes; they'll generally try to do the right thing, but they're also capable of being influenced in the opposite direction. That means we need to think about them and treat them not as “bad” people to be prevented from doing “bad” things, but as “good” people who need our help to do the right things. Which is what Professor Feldman's book title is driving towards; rather than writing laws – or in our case, rules — for “bad” people, we need to write them for “good” people. Or, as I like to think of it:

Design for the willing, not for the wilful.

How “Good” People React

The third implicit presumption is that processes that deter “bad” people from doing “bad” things won't have side effects. If that reminds you of the Theatre I explored in the last Rule; then you're on the right lines.

Before I explore that, be aware that the phrase “side effect” I used two sentences ago is highly misleading. There is no such thing as a “side effect”; every outcome of a behavioural intervention is an effect. Framing the ones we find undesirable as “side effects” might help us to downplay them, but they're as much a part of the intervention as the desired effects.

Back to the Theatre! As a “good” person, I read my favourite version of Form I‐94W and laugh at what I perceive to be the ridiculousness of the questions. Since I'm naturally curious, I wonder what on earth the purpose is and conclude that the process makes no sense. That doesn't make me think more positively about the people who have designed the form.

In an immigration context, it doesn't matter what I think. Since I'm not ticking those boxes, they're not designed for me. Whether they're genuine questions or, in the terminology of Rule Number Three, “Legal Theatre”, I'm not the intended audience. If I want to travel to the US, I'm forced to follow the US Customs & Border Protection (CBP) protocols. Regardless of what I think of those protocols, it's their country, so I must follow their rules.²

But in a compliance context, a very different dynamic is at play; because there's a need for a good relationship between the rule setter and the rule taker. Unlike my interactions with CBP, which are transactional, compliance requires a more relationship‐based approach. As we've seen, many things we need our employees to do rely on their goodwill; or, at the very least, their acceptance.

If we design compliance processes for “bad” people, we'll do things that we wouldn't do if we were designing them for “good” people. For example, a process for “bad” people might intentionally send a signal that they're not trusted. But if we also send that same signal to “good” people, we risk them responding in kind.

Declassify Form I‐94W

This brings me back to the Rule. If we want to succeed in meeting our objectives, then we need to design our processes for those who, on some level, want to comply with them. We then need separate processes to deter and catch those who don't. In the spirit of Professor Feldman's book, we should write rules for “good” people and design governance processes to deal with “bad” ones.

In the meantime, I'm looking forward to the day they declassify the papers about Form I‐94W, so I can find out what secrets those questions are hiding!