Category: Legislation

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Senate fails to pass PRESS Act

After passing the Republican-led House of Representatives with unanimous support in January, the PRESS Act failed to pass in the Senate on unanimous consent, with Republican Senators blocking an effort by Democrats to get the legislation signed into law – just days after President-elect Donald Trump announced he opposed the bill.

The Protect Reporters from Exploitive State Spying (PRESS) Act would protect journalists against government surveillance and the forced disclosure of their confidential sources.

Senate Majority Leader Chuck Schumer spoke in support of the PRESS Act, calling the provisions “common sense” and “more important now than ever before,” and Democratic Senator Ron Wyden of Oregon called for unanimous consent to pass it. The attempt was immediately blocked by Republican Senator Tom Cotton of Arkansas, who said that the bill threatened U.S. national security and its passage would turn the Senate “into the active accomplice of deep-state leakers, traitors and criminals, along with the America-hating and fame-hungry journalists who help them out.”

All major free press advocacy groups, including Freedom of the Press Foundation (FPF), Electronic Frontier Foundation (EFF), Reporters Committee for Freedom of the Press (RCFP), Defending Rights & Dissent (DRaD), and others, support the bill and have redoubled their efforts to pass it before the end of the lame-duck session.

In the wake of the failed vote, FPF has called out the Democrats saying they have had all year to pass the bill, and called on them to use the opportunity to build momentum for more meaningful action and pass it, even by cutting their holidays short. Commenting on an investigation that revealed the DOJ’s failure to comply with the internal guidelines restricting its use of investigative tools to seize journalists’ records, RCFP’s executive director Bruce D. Brown, said that a “reasonable, common-sense law to protect reporters and their sources” is needed “to prevent government interference with the free flow of information to the public.”

It is still possible to pass the PRESS Act through the Senate with just 60 votes.

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Call to Action Journalism Legislation News Whistleblowing

Trump’s re-election and the war on journalism

Donald Trump is poised to return to the White House as the 47th president of the United States, and press freedom groups are sounding the alarm early about what his election means for the state of journalism in the U.S. and around the world. Courage joins these groups in standing up for truthtellers, for journalists’ right to publish, and for your right to know, regardless of which party is in power.

Trump’s record on media freedom in his first term was infamously bleak. Beyond calling the press “the enemy of the people,” Trump viciously attacked news outlets and individual journalists whose coverage he didn’t like and weaponized the state in an effort to silence them. He surveilled reporters, banned outlets from press briefings, and persecuted leakers. In 2017, Trump called on the Federal Communications Commission to revoke the licenses of ABC, NBC, and other news stations, a threat he renewed in the 2024 campaign. 

And of course the biggest assault on press freedom at least since the 1972 Pentagon Papers was the Trump Administration’s indictment of WikiLeaks publisher Julian Assange. In 2019, Trump’s Justice Department levied 17 counts under the Espionage Act against Assange, including charges for soliciting, possessing, and publishing classified documents in the public interest, escalating the Obama Administration’s war on whistleblowers to a full-blown war on journalism.

Campaign threats foreshadow dangerous second term

It appears we can expect more of the same in Trump’s second stint in office. Defending Rights & Dissent writes about the policy plans of Trump and his associates:

 â€œ[Trump’s] close supporters have put together a plan to crack down on pro-Palestine protesters, surveil journalists, and jail whistleblowers. And Trump has made clear he wants to violate the First Amendment by criminalizing flag burning and deporting activists.

They have declared their intent to abuse laws like RICO to silence those who support Palestinian rights and hire more FBI counterintelligence agents to spy on journalists so the government can unmask and imprison whistleblowers.”

When Trump’s CIA went so far as to draw up plans to kidnap and even assassinate Assange while he was detained in the Ecuadorian Embassy in London, Mike Pompeo was at the helm. Trump brought Pompeo along for several major rallies at the close of the 2024 campaign, and initial reports suggested his name was floated for another cabinet position. Just days after being reelected, however, Trump announced preemptively that Pompeo (as well as fellow neocon and former Ambassador Nikki Haley) will not be in his new administration — though he praised Pompeo’s work in Trump’s first term.

More explicitly, Reporters Without Borders found that Trump has verbally threatened the press more than 100 times on the campaign trail, including suggesting he wouldn’t mind if journalists at his rally were shot.

The Committee for the Protection of Journalists, reporting on the massive increase in attacks on the press in the last year, “found that the hostile media climate fostered during Donald Trump’s presidency has left a legacy that poses great risks to media inside and outside the country.”

While the Biden Administration has made some important changes in the intervening years, including Attorney General Merrick Garland’s revision of the DOJ’s policies to prohibit subpoenas for journalists (with narrow exceptions), they have done nothing to truly protect sources and journalists more permanently. The Assange case ended in a plea deal under Biden and Garland, rather than a dropped indictment, instilling a chilling effect on investigative journalists around the world, and the Espionage Act remains at Trump’s disposal, with no public interest defense available to protect defendants in court.

Furthermore, both administrations fully support funding and arming the ongoing killing of Palestinian journalists at an unprecedented rate amid Israeli’s assault on Gaza and Lebanon.

Biden could still pass the PRESS Act

Biden’s lame-duck Congress could still enact policy changes to protect reporters. Chief among them is getting the Senate to pass the Protect Reporters from Exploitative State Spying (PRESS) Act, which passed in the House unanimously and which would severely curtail the government’s ability to surveil reporters. The Freedom of the Press Foundation’s Trevor Timm said,

“The Senate should immediately pass, and President Biden should sign, the bipartisan PRESS Act to stop Trump from spying on journalists, as he repeatedly did in his first term, and from throwing them in jail for refusing to reveal their sources, as he has threatened in the most disgusting terms.

Congress must make good on promises to fix dangerous and sloppily drafted mass surveillance legislation passed earlier this year that gives the U.S. government extraordinary power to spy on its own citizens.

And lawmakers must take a vocal stand against abusing anti-terrorism laws to punish free speech. It’s imperative the White House reverses its spineless position on Israel’s unprecedented attacks on press freedom and pressure its ally to stop using U.S. weapons to kill journalists.”

Support press freedom and those defending it

Whether the Biden Administration and the outgoing Congress pass these protections or not, press freedom groups will continue to fight back in the war on journalism throughout Trump’s second term. Courage has been partnering with many of these groups on a range of issues — from the prosecution of Julian Assange to the widespread killing of Palestinian journalists — in an effort to speak out en masse, our collective voices louder than each of us on our own. We encourage you to support these organizations as you’re able, as the need for solidarity will only grow.

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Legislation News

What needs changing in the EU’s draft whistleblower directive

Courage welcomes a strong set of proposals and recommends changes regarding national security cases, protecting anonymity and letting whistleblowers choose who they talk to

In April this year, the European Commission published the text of its draft whistleblower directive. This was something that campaigners had been working towards for years, partly due to the galvanising impact of the LuxLeaks revelations and the opposition to the European Trade Secrets Directive, both of which we have followed closely at Courage.

On the whole, the proposals are stronger than had been expected and there’s a lot in them that we can be wholly positive about. We are particularly happy to see that the draft Directive treats disclosures about privacy, potential data breaches and network security as whistleblowing, a clarification that is long overdue.

At the same time, we think there are some aspects of the draft Directive that could be improved and we’ve just submitted our explanation to the European Commission.

Here are the changes we would like to see:

At present, the draft whistleblower directive does nothing for national security whistleblowers, whose disclosures often put themselves at great risk. For example, we’ve seen in the past few days how bad things can get for whistleblowers like Reality Winner, and those in other countries also face the potential of severe penalties. Classification should never be used as a reason for covering up evidence of human rights abuses and, while cases like Thomas Drake’s show that internal channels by themselves are not the answer, we think the EU should follow the Council of Europe in getting member states to acknowledge that intelligence service personnel with concerns need to have somewhere to go to.

One of the most important protections a whistleblower can have is the ability to remain anonymous. This isn’t mentioned in the European Commission draft at the moment and it needs to be. At the very least, we think that the draft needs to ensure that whistleblowing reports that are submitted anonymously are treated as seriously as those submitted by other means.

A serious problem with the draft Directive is that it imposes too many restrictions on who a whistleblower can disclose to. Experience shows that, given the choice, the overwhelming majority of whistleblowers prefer to make their reports internally. We do not think that the minority whose complaints need to go straight to an external regulator, or the press, should be limited in that choice. In their public statements around the Directive, members of the European Commission have been clear that it is their intention to make sure the next Antoine Deltour receives proper protection and isn’t dragged through the courts. Unfortunately, we do not think the text achieves this aim at present.

Finally, while we agree that the fundamental rights of people who are the subject of whistleblowing disclosures need to be respected, there are a couple of provisions in the draft Directive that threaten to go too far in the other direction. We are concerned that these could dissuade future whistleblowers from coming forward or present new impediments to public interest reporting, all of which would completely undermine the aims of these proposals.

What next?

The draft Directive is currently being considered by several committees of the European Parliament, which will be in a position to suggest changes and put forward formal amendments to be considered by the Parliament as a whole. We think it is likely that amendments will tackle many of the issues we are concerned about and we will keep you updated as things progress.

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Legislation News

European Commission unveils draft whistleblower directive

Frans Timmermans and Věra Jourova present the European Commission’s proposal for EU-wide whistleblower protection

The European Commission has just published its long awaited draft whistleblower directive, which is the first step towards establishing a common standard for whistleblower protection across the EU.

Continue reading “European Commission unveils draft whistleblower directive”
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Legislation News

Britain eyes up its own Espionage Act

The United Kingdom already has some of the strictest rules on official secrecy in the world. As Ian Cobain details in his recent book The History Thieves, Britain’s strong secrecy culture has ben used to keep information about colonial policy and foreign policy, and even entire military campaigns from the British public. Large archives held by UK government departments in contravention of public records laws, containing some information that is centuries-old, have come to light in the past few years.

Continue reading “Britain eyes up its own Espionage Act”
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Whistleblowers need EU protection – lives, environment and money at stake

On 17 October a platform calling for EU-wide whistleblower protection is launched by the first 44 signatories of a joint statement, which include the Courage Foundation. The statement will be open for additional organisations and individuals to sign after the launch. Following the trade secrets directive and the LuxLeaks trial earlier this summer, the lack of protection of whistleblowers at EU level has come into sharp focus.

Continue reading “Whistleblowers need EU protection – lives, environment and money at stake”
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Journalism Legislation News Whistleblowing

German government plans source prosecution as Greens push new whistleblower protection law

Reports about an impending prosecution shows that Germany is pulling in opposite directions on whistleblower protection. On Friday, Der Spiegel suggested that the federal government is planning to prosecute an unknown whistleblower for revealing  official secrets that were reported in that publication and the Sßddeutsche Zeitung.

The news of this investigation comes as Germany’s official inquiry into surveillance, launched in the wake of Edward Snowden’s revelations, becomes increasingly mired in protracted arguments over the disclosure of information that implicates Germany’s spy agencies as much as it does the NSA. Despite attempts to restrict the documentation and witnesses available to the inquiry, it has so far revealed loopholes Germany’s signals intelligence agency, the BND, uses to circumvent the prohibition on German nationals and new details about controversial joint operations with the NSA.

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The German government has reacted poorly to these disclosures, to the point of warning of possible prosecution should further information reach the media.

Improving Germany’s whistleblower laws

Given that Germany is one of the countries that has shown the strongest support for Edward Snowden – a recent survey shows that the NSA whistleblower has better public recognition there than the US – the country’s own whistleblower protections are surprisingly poor. A 2011 judgment from the European Court of Human Rights has yet to be reflected in domestic law and, as a result, Germany’s truthtellers have to wait for employment tribunals to rule in their favour, by which point employer retaliation is already a fait accompli.

Last month, Germany’s Green representatives, led by Hans-Christian Stroebele, proposed new legislation to improve the situation. On his website, Stoebele explains that the bill is intended to “significantly improve whistleblowers’ protection from employer retaliation or dismissal and to improve legal certainty.”

This isn’t the first time the German Greens have tried to introduce a law like this, but this latest attempt is notable because it has the potential to do more than bring Germany into the mainstream of legal protections for whistleblowers. Provisions in the bill promise to erase the artificial divide that leads to national security whistleblowers facing severe retribution without the protections other public employees enjoy. Stroebele has been clear that the Bill specifically covers cases where a secret service employee “discloses confidential information to uncover a serious grievance, such as massive violations of fundamental rights.”

Protecting alleged sources before charge

Alleged sources who are under investigation and unable to come forward publicly find themselves in a particularly invidious position and in real need of support. Courage runs the only fund designed to guard alleged truthtellers who are obliged to remain anonymous.

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Journalism Legislation News Whistleblowing

Whistleblower protection case reaches US Supreme Court

Updated below

This week, arguments were made in the first federal whistleblower protection case ever to reach the US Supreme Court. The case could set a precedent for protecting whistleblowers across the board — not just for those disclosing sensitive information, but those in every government agency — who face regulation-based retaliations for exposing information in the public interest.

Robert J. Maclean is a former air marshal who blew the whistle on Transportation Security Administration (TSA) cuts to MSNBC in 2003, after seeking internal remedies. In response, the TSA reversed its decision to cut down on air marshals during overnight flights but also fired Maclean several years later for disclosing “Sensitive Security Information,” which isn’t illegal but does breach their internal regulations.

In 2009 Maclean, represented by the Government Accountability Project, challenged his dismissal at the Merit Systems Protection Board, on the grounds that “his disclosure of the text message was protected under the Whistleblower Protection Act of 1989 (WPA), because he ‘reasonably believe[d]’ that the leaked information disclosed ‘a substantial and specific danger to public health or safety.’”

The MSPB sided with the government’s view that the “WPA’s ban on disclosures ‘specifically prohibited by law’ encompassed ‘information that is specifically prohibited from disclosure by a regulation promulgated pursuant to an express legislative directive.’” However, last year a three-judge Federal Circuit panel vacated that ruling on appeal. Now the Department of Homeland Security wants the U.S. Supreme Court to overturn that ruling, claiming it “clears a path for any employee to do what [MacLean] did.”

At the Supreme Court

SCOTUSblog frames the basic question facing the Supreme Court as follows:

For a disclosure to be “specifically prohibited by law,” must an Act of Congress expressly bar that specific disclosure, or is it enough for Congress to generally delegate to an administrative agency the power to bar that specific disclosure?

A win for the Department of Homeland Security would represent a significant weakening of US whistleblower laws that, for non-classified sectors at least, are relatively well regarded.

The court heard oral arguments this week, and journalists are reporting that the government faced tough questioning from the justices, with Maclean’s case appearing to be favoured. The Washington Post writes that “the tone of the questions and comments from the justices hearing his case provided ample reason for this former air marshal to feel good about the first Supreme Court case directly involving a federal whistleblower.”

As the New York Times reports, “Ian H. Gershengorn, a deputy solicitor general, received hostile questions from most of the justices. Justice Antonin Scalia, for instance, was unconvinced by Mr. Gershengorn’s attempt to argue that the word “law” in isolation encompassed some but not all regulations.”

Furthermore,

Some justices wondered how transportation workers could tell what information was too sensitive to be disclosed. Chief Justice John G. Roberts Jr. noted that the government’s own brief had conceded that Mr. MacLean had been free to tell reporters “that federal air marshals will be absent from important flights” but also decline “to specify which flights.”

Justice Sonia Sotomayor told Maclean’s lawyer, “The facts are very much in your favor.”

Whether or when the justices will deliver a ruling remains to be determined, but follow the case’s progress here, and we will report on any updates.

Update: 22 January 2015

On 21 January, the Supreme Court ruled 7-2 in MacLean’s favour.

As SCOTUSblog’s Steve Vladeck writes, “Chief Justice Roberts quickly dispensed with the government’s theory – that the TSA regulations prohibiting unauthorized disclosure of SSI ‘specifically prohibited’ MacLean’s disclosure ‘by law.’”

Vladeck continues, commenting on the implications this case has for future whistleblowers:

the decision in MacLean clarifies that the Whistleblower Protection Act’s exemption for disclosures “specifically prohibited by law” does not apply to disclosures prohibited solely by agency regulations – or even by statutes that command the agency to promulgate non-disclosure regulations. Instead, the statute must itself bar the disclosure for the disclosure to be “specifically prohibited by law.

For now, whistleblower protections have not been weakened, though Chief Justice Roberts has invited Congress or the President, rather than the Court, to address whether to narrow them in national security cases.

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Legislation News Whistleblowing

Yochai Benkler outlines public accountability defence for whistleblowers

Harvard Law Professor Yochai Benkler has published ‘A Public Accountability Defence for National Security Leakers and Whistleblowers,’ highlighting the value that leaks of national security information bring to American democracy and emphasizing the need for a legally permissible defence for those who bring this information to light. He outlines such a defence for what he calls “accountability leaks”, acknowledging that current law defines the term “whistleblower” too narrowly. If Benkler’s proposed defence were practiced today, Chelsea Manning might have avoided such a harsh prison term, and Edward Snowden might feel safe to return home.

Benkler has previously explained how WikiLeaks, as a legitimate journalistic outlet, helped other media outlets perform a vital check on government in ‘A Free Irresponsible Press: WikiLeaks and the Battle for the Soul of the Networked Fourth Estate.’ He expanded on that article while testifying at Chelsea Manning’s trial.

In his new piece, Benkler argues that rather than technological change, a legitimacy crisis has spurred the last decade’s spate of national security leaks documenting systemic abuse:

The post-9/11 War on Terror and its attendant torture, rendition, indefinite detention, civilian collateral damage, and illegal domestic spying created a crisis of conscience for some insiders in the national security establishment. A consideration of the actual cases of
the past decade suggests that it is this loss of legitimacy of decisions that likely underlies the increase in these kinds of systemic leaks.

Although “[c]riminal liability for leaking and publishing classified materials is usually discussed in terms of a conflict between high-level values: security and democracy”, Benkler proposes “that the high-level abstraction obscures the fact that “national security” is, first and foremost, a system of organizations and institutions, subject to all the imperfections and failures of all other organizations.” Therefore, “it would be naïve beyond credulity to believe that the CIA, NSA, FBI, and Pentagon are immune to the failure dynamics that pervade every other large organization.”

Benkler explains how secrecy precludes accountability, rendering whistleblowing essentially inevitable — and necessary to keep massive organizations in check.

Secrecy insulates self-reinforcing internal organizational dynamics from external correction. … Some leaks, however, provide a critical mechanism for piercing the national security system’s echo-chamber, countering self-reinforcing information cascades, groupthink, and cognitive biases that necessarily pervade any closed communications system. It is this type of leak, which exposes and challenges core systemic behaviors, that has increased in this past decade, as it did in the early 1970s. These leaks are primarily driven by conscience, and demand accountability for systemic error, incompetence, or malfeasance. Their critical checking function derives from the fact that conscience is uncorrelated with well-behaved organizational processes. Like an electric fuse, accountability leaks, as we might call them, blow when the internal dynamics of the system reach the breaking point of an individual with knowledge, but without authority. They are therefore hard to predict, and function like surprise inspections that keep a system honest. By doing so, these leaks serve both democracy and security.

Rather than embrace these disclosures as vital and valuable, the government has cracked down harder than ever before on leakers and, to some extent, journalists who publish secret information. Benkler encourages countering this crackdown with a defence that whistleblowers could use in court:

To address this threat, I propose that Congress adopt a new Public Accountability defence as a general criminal defence, on the model of the necessity defence. The defence would be available to individuals who violate a law on the reasonable belief that by doing so they will expose to public scrutiny substantial violations of law or substantial systemic error, incompetence, or malfeasance even where it falls short of formal illegality. It is most important to the leakers themselves, but would also be available to journalists and others who participate in disseminating the leaked information.

He details what this defence would require:

(a) reasonable belief that exposure discloses a substantial violation of law or substantial systemic error, incompetence, or malfeasance,
(b)mitigation to avoid causing imminent, articulable, substantial harm that outweighs the benefit of disclosure, and
(c) communication to a channel likely to result in actual exposure to the public

Perhaps recognizing how the Espionage Act has been interpreted in the US to allow potential for harm to monopolize courtroom debate to the exclusion of discussion of the documents’ value, Benkler notes: “The significance of the disclosed violations is the most important factor, and could dominate the outcome even where other elements, in particular harm mitigation, are weaker.”

Benkler realises that such a defence is just one part of a range of necessary support measures: “full whistleblower protection would require more robust protections to avoid “punishment by process,” most importantly a private right of action against abusive prosecutors and an attenuation of the prosecutors’ qualified immunity.”

In the full article, Benkler explains in more detail how valuable national security leaks are, using bulk data collection since 11 September 2001 as an example. He further details his proposed whistleblower defence, and, finally, recounts 22 instances of leak prosecutions since World War II.

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Legislation News Whistleblowing

British MPs say “whistleblowing is crucial” but fail to protect intelligence whistleblowers

One of the UK’s most important parliamentary committees, the cross-party Public Accounts Committee, published a report on 1 August 2014, that found whistleblowers are a “crucial source of intelligence to help government identify wrongdoing.” While identifying the retaliation that UK government whistleblowers face, the Committee failed to mention one significant category of truthtellers altogether.

The Public Accounts Committee investigation was prompted by a separate report, Making a Whistleblowing Policy Work published by the UK’s National Audit Office in March 2014. Since the Public Accounts Committee scrutinises the efficiency of public spending, their hearing on 24 March and this month’s report focused on whistleblowing in the public sector and extended to discuss private and voluntary sectors where public services are outsourced.

The Committee found that the treatment of whistleblowers is often “shocking” and “appalling” and recommended that legal and counselling services be offered. The report acknowledges the bullying, harassment and victimisation many whistleblowers endure, and recognised that it takes “remarkable courage” for employees to come forward and raise concerns.

Furthermore, the report found there had been a “startling disconnect” between policies within government purporting to encourage whistleblowers and what happens in practice, where victimisation of whistleblowers is rarely punished. The Chair of the Committee, Margaret Hodge MP, noted that in a survey of Ministry of Defence employees, “only 40 per cent of respondents felt they would not suffer reprisals if they raised a concern.”

However, the disconnect between whistleblower protections in theory and reality goes even further than the Public Accounts Committee admits as their report overlooks the specific problems with intelligence whistleblowing. As such, its recommendations do little to protect some the most prominent and threatened whistleblowers today.

What protections do whistleblowers have in the UK?

In the UK, employees may blow the whistle outside the workplace and to a prescribed official body if their employer does not have a whistleblowing procedure; if they feel their employer would cover up their disclosure; if they expect unfair retaliation; or if the employer has not taken action after a disclosure has already been made.

The Public Interest Disclosure Act (PIDA, 1998) is designed to protect workers from employer retaliation when an employee blows the whistle in the public interest. However, it does not commit employers to respond effectively to whistleblowers’ disclosures and it does not prevent employers from “blacklisting” the whistleblower, harming future employment prospects. Moreover, this Act does not apply to those who are self-employed or volunteers, or to individuals who work under the Official Secrets Act (1989) in the government, military and intelligence communities.

In the UK, the Official Secrets Act protects official information and state secrets from public disclosure. The Act was revised in 1989 to remove whistleblowers’ right to a public interest defence for unauthorised disclosures. That is, any unauthorised disclosure of information is now automatically a punishable criminal act with no defence – even if the information released is deemed to be of significant public value.

In 2002, former MI5 officer and whistleblower, David Shayler, was prosecuted for informing media of the misconduct and several alleged crimes of the security services, including evidence of complicity in an illegal plot to assassinate Colonel Gaddafi, which failed but resulted in the death of innocent civilians. While it was acknowledged in court that Mr Shayler had no viable ‘official’ avenues to pursue his concerns, that his disclosures were made in the public interest and had put no lives at risk, he was found guilty and imprisoned nonetheless.

As a result of the 1989 Act, there are effectively no whistleblowing protections for employees of the UK’s security services. At present, they even lack freedom of speech within parliament. The parliamentary committee charged with oversight of the intelligence services – the Intelligence and Security Committee (ISC) – exempts witnesses from the ‘absolute privilege’ of being able to give evidence in parliament without incrimination that applies to other parliamentary committees.

“The public interest defence should be reintroduced”

Annie Machon, a former intelligence officer who helped her ex-partner Mr Shayler in blowing the whistle on MI5, and a member of the Courage advisory board, told Courage the report was “welcome, if belated.”

Machon said:

The report doesn’t help whistleblowers who emerge from the military, central government or the intelligence services. These are the very people who are most likely to witness the most heinous state crimes, yet these are also the very people who are automatically criminalised under the draconian terms of the OSA 1989. The Official Secrets Act (1989) in the UK is drafted to stifle whistleblowers rather than protect real secrets.

At the very least the public interest defence should be reintroduced to British secrecy legislation. That is not ideal, as the whistleblower would still have to prove their case in court.

Ideally, there would be a powerful body that such whistleblowers could address their concerns to, in which they had a well-founded expectation that disclosures of criminality would be properly investigated, crimes punished and meaningful reform instituted.”