How the Government Makes Lying a Crime
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How the Government Makes Lying a Crime

A man is going to jail for teaching people how to beat polygraph tests. How is that possible?

In the United States, it is not a crime to lie. It is not a crime to cheat. And it's certainly not a crime to teach someone how to lie. So, to silence a man who has spent much of his adult life teaching people to lie, the Department of Homeland Security had to get creative.

Douglas Williams, a 67-year-old former FBI agent is going to federal prison for two years at the end of October. Williams's is the biggest arrest to come out of "Operation Lie Busters," a Department of Homeland Security initiative to entrap and arrest those who teach others to "pass" polygraph lie-detection examinations.

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Williams isn't sure he's committed a crime. Neither are a lot of people. But taking a plea deal was better than the 100 years and hundreds of thousands of dollars in fines he was facing.

The specifics of Williams's case have been well reported elsewhere, but here's the short version: For years, Williams charged about $1,000 per day to coach people to pass polygraph lie-detection tests through his website, polygraph.com. That business, in and of itself, is not a crime and is protected by the First Amendment. Fraud, however, is not, and so the Department of Homeland Security sought to make Williams commit fraud.

"The criminalization of speech advocating for unlawful behavior has been a pretext for suppressing unpopular ideas"

According to Williams's indictment, two undercover agents asked Williams to teach them how to pass a polygraph test in order to pass a federal background check.

During the lead up to the classes (and during the classes themselves), both undercover agents repeatedly confessed specifics of imaginary past crimes that they wished to lie about. Because Williams was told about one of the would-be employee's (imaginary) drug smuggling, he was technically assisting a person to defraud the government, according to the indictment.

In 2013, Williams was charged with two counts of mail fraud (he received the undercover agents' payments in the mail) and three counts of witness tampering. Each carried a sentence of 20 years. Chad Dixon, another person who taught polygraphy countermeasures, served eight months in prison after a similar government sting operation.

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"I had no idea what I was doing was illegal and I still don't think it was," Williams told me shortly after his sentencing earlier this week. "They piled so many charges on that you're crushed under the weight of their overreach—my attorney told me to just cut my losses and take the plea."

So how does the government make lying illegal? And why bother?

"It is lawful and constitutionally protected to engage in speech and it's legal to even offer tools that others may use to break the law. It's legal to advocate lying and even advocate cheating," Lee Rowland, a senior staff attorney at the American Civil Liberties Union who specializes in First Amendment issues, told me. "That is all speech fully protected by the First Amendment, and it's why you're allowed to sell devices for flushing illegal drugs out of your system or display the anarchist cookbook."

She says that the government commonly operates around the edges of the law in order to suppress speech.

"Reaching the point where the government can prove someone who is giving people tools to beat a lie detection test is committing a crime does and should create a high factual bar," she said. "Charges can only be brought in a polygraph beating context where the government can show a significant act of fraud."

"The more people who understand what the polygraph is capable of doing and is not capable of doing, the more likely it's put into the scrap heap of history"

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Williams's work isn't all that different from those who advocated for Communism during the Cold War or those who push to legalize drugs. Like many in the business, Williams doesn't specifically want to help criminals. Instead, he wants to bring attention to a flawed technology he says has been systematically used to incarcerate and disqualify people from federal jobs.

"I have no interest in helping criminals escape prosecution or in helping people who are not qualified for a job get it. The more people who understand what the polygraph is capable of doing and is not capable of doing, the more likely it's put into the scrap heap of history," Williams said. "It's worthless technology. It cannot withstand scrutiny."

In a landmark, 417-page report published in 2002, the National Research Council more or less agreed, suggesting that polygraph testing "rests on weak scientific underpinnings despite nearly a century of study."

Besides teaching people how to pass polygraphs, Williams has testified before Congress on the device's utility and appeared on 60 Minutes demonstrating his technique. For decades, he has been one of the most outspoken opponents of the technology, which he believes is what got him investigated in the first place.

"If you're protesting against a government program you feel is wrong, someone is going to be knocking on your damn door," he said.

Rowland says that sort of behavior wouldn't be out of character for the federal government.

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"The criminalization of speech advocating for unlawful behavior has been a pretext for suppressing unpopular ideas. It's not a stretch to think that's what's going on here," she said. "It's clear the government believes the stakes are high here—if [Williams and people like him] are successful, it exposes the fact that these things can be beat, that it's pseudoscience. It's all the more troubling they used undercover agents to create a crime that amounts to nothing more than words alone."

Williams is going to prison, but now that his case is over, he has put polygraph.com back online. His book, which he says has reams of evidence supporting how a flawed technology has been used to suppress people, is back up for sale.

"I want people to know what's going on," he said. "I don't think I can get into any more trouble than I'm in right now, but I'm really not sure. I'm taking another risk. At this point, I just think the government has unlimited power."

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