Category: Whistleblowing

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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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News Whistleblowing

Germany’s whistleblower protection among the worst in the G20, says new report

A new report on the state of whistleblower protection in some of the world’s richest countries has found that Germany ranks alongside Argentina, Brazil, India, Indonesia, Italy, Mexico, Russia, Saudi Arabia and Turkey as one of the countries that does the least to ensure that whistleblowers can speak out without fear of retribution.

The report, which was co-authored by researchers from Australian NGO Blueprint for Free Speech, Transparency International Australia, Griffith University and Melbourne University, compares G20 countries’ legal frameworks with the commitments they signed up to in the G20’s 2013-14 Anti-Corruption Action Plan, where they agreed:

to ensure that those reporting on corruption, including journalists, can exercise their function without fear of any harassment or threat or of private or government legal action for reporting in good faith

The report sets out 14 separate criteria based on the G20 agreement, other international agreements on whistleblower protection and best practice documents drawn up by intergovernmental organisations and NGOs.

What the report found

The report found that, while there had been real improvement over the past decade, serious shortcomings remained in the legal systems of most G20 countries – and those shortcomings affected most of the areas potential whistleblowers would be concerned about. Provisions for whistleblowers to remain anonymous when using internal channels to express their concerns were identified as a particular weakness across the G20, as were the rules around disclosure to third parties – including, where appropriate, the media.

The provision of independent bodies and mechanisms to deal with whistleblower complaints and to report on how legal protections were being used were also seen as poor across the countries surveyed. In addition, the authors note that where regulations exist, they tend to apply to the public sector only – governments have been much less active in ensuring that private sector whistleblowers can speak out in confidence.

Legal regimes, of course, only tell part of the story. As the report’s authors point out, the formal presence of adequate whistleblower protection laws does not in itself tell you whether they are implemented consistently, or whether “cultural or other norms [in a particular country] indirectly assist in practical protection of whistleblowers.”

As we’ve noted previously, legal frameworks are a particularly poor guide to what might happen in difficult cases, especially those where disclosures have a national security dimension. Some G20 countries, like the UK and Canada, explicitly exclude military and intelligence personnel from their ‘whistleblower’ definition and all the protections in law that derive from that (the report calls this “a glaring gap”). Others, like the United States, have a legislative framework that is well rated – and in theory extends to its intelligence agencies – but in practice apply very different rules, and extreme anti-whistleblower measures, when classified information is involved.

Why did Germany score so badly?

Germany’s poor score in the report might come as a surprise to some, given the country’s renowned worker representation laws and positive reaction to Edward Snowden’s revelations. But in July 2011, the European Court of Human Rights ruled that Germany’s protection of its own whistleblowers was inadequate.

Brigitte Heinisch und das Urteil des EGMR
The case was brought by Brigitte Heinisch, a nurse who brought the systematic mistreatment of elderly patients to the attention of the healthcare company she worked for. When appeals to management proved ineffective, Heinisch brought legal action against her employers and wrote a leaflet to explain what was happening in the case. The European Court ruled that the public interest in Heinisch’s disclosures outweighed her employers’ right to protect their business reputation and that her summary dismissal had been “disproportionately severe.” She was later awarded compensation by a German court.

In fact, the German legal code only offers limited protection for public officials who are reporting suspicions of corruption – and this came only after a change of the law in 2009. Germany’s employment courts offer limited redress to those who report wrongdoing in good faith, but there remains a strong bias against anonymous reporting and public disclosure. None of the legislative proposals made since the 2011 judgment have attracted the support necessary to secure a change in the law.

Read the full report here

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Why the world needs more whistleblowers

This article was first published here by the EFF, with whom we’re collaborating for their week of action around the Necessary and Appropriate Principles

by Sana Saleem, Courage Foundation Advisory Board

During the Stockholm Internet Forum this year, a State Department representative was quick to flaunt reforms put in place by the US Government to ‘counter US mass surveillance programmes.’ However, he was unwilling to respond when faced with the simple question “If you are willing to reform laws and mend things, why not honor the man who triggered it, why not bring Edward Snowden home?”

Too often, whistleblowers aren’t valued for the reforms they instigate. Even as government worldwide are considering new ways to limit mass surveillance, there is scant discussion about the need to honor and protect whisteblowers.

The world needs more whistleblowers because those in positions of power are often expert at hiding corruption from the public. People with integrity and a desire for truth and justice within the political system are often our best hope for bringing light to this corruption.

But as much of the world’s press extensively reports on Wikileaks and the Snowden revelations, we must not dismiss the trepidation that comes with reporting the truth and exposing misuse of power. This trepidation will not dissipate unless there is a collective effort to protect and defend whistleblowers, and reform laws that allow for prosecuting them.

There’s also the pressing need to keep using the information provided by whistleblowers to push for necessary reforms and protections. Today is Day 4 of the Electronic Frontier Foundation (EFF) ‘Necessary and Proportionate’ week of action. The EFF is calling on governments to ensure surveillance law reform is guided by key principles. Today we focus on principle 4: the ‘Integrity of Communications and Systems, Safeguards Against Illegitimate Access, Protection on Whistleblowers, and Right to An Effective Remedy’.

What is meant by the ‘Integrity of Communications and Systems’ in practice? The NSA, or any other government for that matter, should not be able to compel service providers or hardware or software vendors to build surveillance or backdoors into their systems. These companies also should not collect or retain particular information purely for state surveillance purposes.

We now have confirmation that governments are going above and beyond compelling companies to build backdoors into their services. In an article posted on the Intercept this week journalist, documentary maker and Intercept co-founder Laura Poitras documents how the NSA is tapping into Germany’s largest telecommunications providers by accessing the passwords of the system administrators. This revelation was greeted with both shock and deep anger by the telco engineers. Governments need to go beyond merely not forcing companies to comply with backdoor requests, they must put an immediate stop to the accessing whole systems covertly. This point addresses the second element of principle 4, when state authorities illegitimately access personal data.

There is no possibility of protecting against this when it’s happening behind the backs of service providers and hardware and software vendors. This leaves the onus on governments, who, in democratic societies, are accountable to their citizens. The third part of this is an onus on government to protect their whistleblowers. The Obama administration, in what the Nieman Reports has labeled the “Big Chill”, is operating amid unprecedented secrecy—while attacking journalists trying to tell the public what they need to know

Former New York Times executive editor Jill Abramson:

Several reporters who have covered national security in Washington for decades tell me that the environment has never been tougher or information harder to dislodge,

Abramson said

One Times reporter told me the environment in Washington has never been more hostile to reporting.

Protection of whistleblowers is critically important for the protection of a just society. But it’s not just whistleblowers under attack: it is also increasingly difficult to advocate for whistleblowers given the government and the media’s treatment of those who seek to protect whistleblowers.

The Courage Foundation was set up to provide legal and policy support for those who have made a decision to stand up to the abuse of power, risk their career and, in some cases, family life, so that our liberties are protected. It is for this reason that the need to provide stronger protections for whistleblowers, in such a difficult climate, is incredibly important.

Finally, what happens when the state conducts illegal and warrantless surveillance against its citizens? Snowden’s revelations have revealed state intrusion into the lives of hundreds of millions of Americans and citizens around the world, without proof for suspicion. Does the legal system allow us to challenge such surveillance in court? If it does, what would happen to the US government if they were found guilty of illegally surveilling you or me? The Necessary and Proportionate principles argue for civil and criminal penalties imposed on any party responsible for illegal electronic surveillance and those affected by surveillance must have access to legal mechanisms necessary for effective redress.

Tomorrow is Friday, day 5, in which the EFF and its supporters around the world will call on governments to improve safeguards for International Cooperation and Extraterritorial Application of Human Rights Law. The Courage Foundation stands beside the EFF’s campaign and calls on all rights groups and activists seeking to preserve an Internet free from surveillance to support this campaign.

It was little over a year ago when Edward Snowden performed an act of remarkable conscience. Snowden’s actions have empowered a generation of us to stand up to abuses and to do the right thing, even when it’s not convenient. With the increasing power and resources of state surveillance programs, the world is in dire need of more whistleblowers to continue this fight.

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News Whistleblowing

Obama: “If you blow the whistle, you should be thanked”

“If you blow the whistle, you should be thanked. You should be protected for doing the right thing. You shouldn’t be ignored and you certainly shouldn’t be punished.”

These were the surprising words of President Obama on 7 August 2014, as he signed a $16 billion bill to improve veterans’ access to medical care. The bill followed a report from the Department for Veterans’ Affairs, which confirmed many of the complaints whistleblowers had been making – waiting lists were indeed being manipulated to hide how long veterans were having to wait for medical appointments.

The White House again praised whistleblowers this week, responding to a letter sent by the Society of Professional Journalists and 37 other journalism and open government groups urging the Obama Administration to be more transparent. The letter from White House Press Secretary Josh Earnest claims that the Administration has “made important progress” in “protecting whistleblowers” and “disclosing previously classified information.” Earnest cites the 2012 Whistleblower Protection Enhancement Act as evidence that the Administration has “fought for and won better protections for whistleblowers.”

obama-meme

But the Whistleblower Protection Enhancement Act that the White House claims offers better protections for whistleblowers is limited. While the Act was recognised as a step forward by whistleblower organisations like the Government Accountability Project (GAP) and the National Whistleblowers Centre, GAP also recognised its limitations. Blowing the whistle within official channels does not guarantee public disclosure of the information and does little to facilitate what Yochai Benkler has called “accountability leaks… that challenge systemic practices.”

At any rate, it is not the Whistleblower Protection Enhancement Act for which this Presidency is likely to be remembered but the intelligence whistleblowers who have faced severe reprisals on its watch. The Obama Administration, famously, has initiated eight prosecutions under the Espionage Act –  more uses of the 1917 Act than all previous US presidents combined. Former NSA employees Thomas Drake and Edward Snowden, who blew the whistle on mass surveillance; former US Army intelligence analyst Chelsea Manning, who blew the whistle on US torture and war crimes in Iraq and Afghanistan; and former CIA official John Kiriakou, who blew the whistle on US torture, are among the intelligence whistleblowers who have been charged with the Espionage Act during Obama’s Administration.

Ray McGovern, a former CIA senior analyst, founder of whistleblower group Sam Adams Associates for Integrity in Intelligence and co-founder of Veteran Intelligence Professionals for Sanity (VIPS), responded to Obama’s comments saying, “President Obama is giving hypocrisy a bad name.”

SONY DSC

McGovern, who is also a member of Courage’s advisory board, said:

Obama’s record speaks for itself; he has prosecuted more than twice as many whistleblowers – for espionage, no less – than all former presidents combined. As for those whose crimes have been whistle-blown upon, like those who did the torture, Obama continues to call them ‘patriots’. Former CIA operative John Kiriakou, who opposed torture, sits in a Pennsylvania prison because he revealed the name of one of the torturers.

Too bad Kafka is dead.

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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.”

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New reports shed light on surveillance’s chilling effects

Human Rights Watch and the American Civil Liberties Union have published a joint report highlighting the chilling effects that US surveillance instills in journalists and lawyers, concluding that “surveillance is undermining media freedom and the right to counsel, and ultimately obstructing the American people’s ability to hold their government to account.” The EFF writes that the report “adds to the growing body of evidence that the NSA’s surveillance programs are causing real harm.”

As the ACLU explains:

The report is drawn from interviews with some 50 journalists covering intelligence, national security, and law enforcement for outlets including the New York Times, the Associated Press, ABC, and NPR.

The U.S. has long held itself out as a global leader on media freedom. However, journalists interviewed for the report are finding that surveillance is harming their ability to report on matters of great public concern.

Surveillance has magnified existing concerns among journalists and their sources over the administration’s crackdown on leaks. The crackdown includes new restrictions on contact between intelligence officials and the media, an increase in leak prosecutions, and the Insider Threat Program, which requires federal officials to report one another for “suspicious” behavior that might betray an intention to leak information.

The HRW/ACLU report is part of a growing body of evidence that journalists and lawyers feel their ability to protect sources and clients is threatened. In an interview with the Guardian last month, Edward Snowden recommended that professionals start to use encryption:

An unfortunate side effect of the development of all these new surveillance technologies is that the work of journalism has become immeasurably harder than it ever has been in the past. Journalists have to be particularly conscious about any sort of network signalling, any sort of connection, any sort of licence plate reading device that they pass on their way to a meeting point, any place they use their credit card, any place they take their phone, any email contact they have with the source because that very first contact, before encrypted communications are established, is enough to give it all away.

No matter how careful you are from that point on, no matter how sophisticated your source, journalists have to be sure that they make no mistakes at all in the very beginning to the very end of a source relationship or they’re placing people actively at risk. Lawyers are in the same position. And investigators. And doctors.

While professional associations have taken part in international investigations and legal challenges resulting from the Snowden revelations, as the HRW/ACLU report describes, there is a lack of consensus about what best practice should be for journalists and lawyers in a post-Snowden world.

NFA Report on Surveillance Costs

Just a day after the HRW/ACLU report, the New America Foundation published ‘Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom & Cybersecurity,’ an attempt to “quantify and categorize the costs of the NSA surveillance programs since the initial leaks were reported in June 2013.” The NFA finds that “the NSA’s actions have already begun to, and will continue to, cause significant damage to the interests of the United States and the global Internet community,” focusing on economic costs to US businesses, the harm done to US credibility and the “serious damage to Internet security through [the NSA’s] weakening of key encryption standards.”

Series of Reports on Surveillance Impact

The reports continue a series of investigations into the many ways that US surveillance infringes on Americans’ rights and privacy. In October 2013, the Committee to Protect Journalists published ‘The Obama Administration and the Press: Leak investigations and surveillance in post-9/11 America,’ a look at how the current crackdown on whistleblowers and the journalism they enable is dissuading officials from speaking to the press.

CPJ writes:

U.S. President Barack Obama came into office pledging open government, but he has fallen short of his promise. Journalists and transparency advocates say the White House curbs routine disclosure of information and deploys its own media to evade scrutiny by the press. Aggressive prosecution of leakers of classified information and broad electronic surveillance programs deter government sources from speaking to journalists.

New York Times reporter Scott Shane told CPJ:

Most people are deterred by those leaks prosecutions. They’re scared to death. There’s a gray zone between classified and unclassified information, and most sources were in that gray zone. Sources are now afraid to enter that gray zone. It’s having a deterrent effect. If we consider aggressive press coverage of government activities being at the core of American democracy, this tips the balance heavily in favor of the government.

CPJ shows that though 9/11 was a “watershed moment” that led to the vast expansion of secrecy and surveillance, the Obama Administration has been even more closed off to the press than previous presidents.

PEN America

In November 2013, PEN America released a report on a less-discussed sector of surveillance targets: writers. PEN concludes that “freedom of expression is under threat and, as a result, freedom of information is imperiled as well.”

Recounting their findings, PEN writes:

Fully 85% of writers responding to PEN’s survey are worried about government surveillance of Americans, and 73% of writers have never been as worried about privacy rights and freedom of the press as they are today. PEN has long argued that surveillance poses risks to creativity and free expression. The results of this survey—the beginning of a broader investigation into the harms of surveillance—substantiate PEN’s concerns: writers are not only overwhelmingly worried about government surveillance, but are engaging in self-censorship as a result.

PEN says that writers showed a “reluctance to write or speak about certain subjects; reluctance to pursue research about certain subjects; and reluctance to communicate with sources, or with friends abroad, for fear that they will endanger their counterparts by doing so.”

Privacy and Civil Liberties Oversight Board

Finally, the Privacy and Civil Liberties Oversight Board published, on 2 July 2014, a ‘Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act.’ The NSA has broadly interpreted section 702 to sweep up massive amounts of data on both foreign citizens and Americans.

The Center for Constitutional Rights, which represents several inmates at Guantanamo Bay, criticises some aspects of PCLOB’s focus, but writes:

Deeply troubling, the report found that attorneys’ legally-privileged communications are used and shared by the NSA, CIA and FBI unless they are communications directly with a client who has already been indicted in U.S. courts, which strongly suggests that the contents of privileged attorney-client communications at Guantanamo are subject to NSA warrantless surveillance. This raises serious concerns about the fairness of the military commission system and would seem to violate court orders entered in Guantanamo habeas cases that protect attorney-client privilege.

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News Whistleblowing

US government claims to be investigating new whistleblower while leaking to AP

US government officials have told CNN that it believes a new, post-Edward Snowden whistleblower is providing national security information to journalists. The claim comes after the Intercept published secret documents detailing the government’s expansion of the terrorist-tracking system that lands people on the no-fly list. As Jeremy Scahill and Ryan Devereaux report, “the Obama Administration has presided over an unprecedented expansion of the terrorist screening system.”

The Intercept reports that the documents were “obtained from a source in the intelligence community.”

But as the Huffington Post reports, the government leaked the newsworthy information to the Associated Press just before the Intercept was set to publish, “spoiling the scoop” after the Intercept had given government officials time to comment for its forthcoming report.

If the Obama Administration doesn’t mind spilling this information to AP just to reward its more favorable reporting, why did it need to be classified in the first place?

The government will now likely investigate the Intercept’s source with the hopes of silencing future disclosures. Whoever leaked to AP will, of course, face none of the repercussions that whistleblowers like Edward Snowden have experienced.

This is a double standard the Obama Administration has employed for years. Back in March, John “Chris” Inglis leaked major details about the NSA’s data collection capabilities in Iraq, just after retiring, despite the agency’s claims that such disclosures could lead to deaths. Similarly, in 2012, government officials leaked top-secret details to the New York Times about the Obama Administration’s “kill list” for targeted assassinations. When congressmembers suggested the disclosures should be investigated, the White House responded that their claims were “grossly irresponsible.”

In contrast, the Obama Administration has reacted to whistleblowers, particularly within the intelligence community, with an unprecedented string of Espionage Act prosecutions and an Insider Threat programme that aims to identify potential whistleblowers before they act. It is significant that, despite the penalties that could follow, the Intercept‘s source still decided that the information needed to be brought to public attention.

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News Whistleblowing

Swiss banking’s whistleblowers: the regulators of last resort

Swiss banks’ history of absolute confidentiality for their clients has led to the small country becoming the world’s largest centre for private banking. That secrecy is backed up by national laws: if Swiss bank employees disclose details they come across professionally, they don’t just risk losing their job — they face prison.

International initiatives to combat money laundering and tax evasion have put increasing pressure on Switzerland to break with the past and adopt greater transparency and better reporting standards. The Swiss resistance to surrendering their competitive advantage is reflected by the treatment meted out to whistleblowers from the banking sector, who – as the Economist reports this week –  have been fiercely persecuted.

Last summer Pierre Condamin-Gerbier, a former Geneva-based private banker, revealed that French budget minister and tax tsar, Jérôme Cahuzac, had hidden €600,000 in a Swiss bank account for over 20 years, despite repeatedly denying ever holding a bank account abroad. The revelation led to Cahuzac’s resignation and expulsion from France’s Socialist Party. Whistleblower Gerbier  was arrested on his return to Switzerland, released on bail in September last year and has recently appeared before a Swiss prosecutor.

This follows an extraordinary decade of retaliation against whistleblower Rudolf Elmer, a former executive with Bank Julius Baer based in the Cayman Islands, who raised concerns internally before turning to authorities and finally WikiLeaks to expose alleged complicity with tax avoidance and money laundering. Elmer and his family suffered extended close surveillance, intimidation and harassment (for which Julius Baer has already paid an undisclosed out of court settlement). Elmer has been imprisoned twice without charge, once for 187 days and once for 30 days, with periods in solitary confinement.

Rudolf Elmer, Julius Baer whistleblower
Rudolf Elmer, Julius Baer whistleblower

Swiss disclosure to international tax authorities is gradually inching forward. In October last year, Switzerland signed the OECD Multilateral Convention – an agreement to exchange information about taxpayers between tax authorities on request. But while the Swiss government has signed on to the Convention, it has failed to do anything to improve the situation of the whistleblowing bankers who have done so much do demonstrate why international agreements were needed. Secrecy laws remain in place and, as the case of Pierre Condamin-Gerbier shows, drawn out criminal proceedings and pre-trial detention for whistleblowers continue.

Whistleblower protections in Switzerland would serve the public interest more effectively than the decade-long trial Rudolf Elmer has had to suffer.

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News Whistleblowing

CIA spying on its own “internal channels” for whistleblowers

McClatchy reports that the Central Intelligence Agency may be “intercepting the communications of officials who handle whistleblower cases.” The Senate Intelligence Committee’s classified 6,000-page report into the CIA’s post-9/11 interrogation programme is still yet to be published and the Committee has already accused the agency of illegally spying on that probe.

Cia-lobby-seal

Now it has emerged that the CIA retaliated against an official who cooperated with the Senate investigation, and Senate members emailed one another to accuse the agency’s inspector general of failing to investigate that retaliation – and the CIA has obtained at least one of those emails.

As McClatchy writes, “The email controversy points to holes in the intelligence community’s whistleblower protection systems and raises fresh questions about the extent to which intelligence agencies can elude congressional oversight.” If the Senate cannot investigate the CIA independently and free of retaliation fears, who can? How can intelligence agencies be held accountable if they even intercept communications into their own operations?

From internal channels to insider threats

It is already difficult enough for government employees in the US to come forward with their concerns. If intelligence community officials fear reprisal, they have even less incentive to expose wrongdoing through internal channels. US Senators Chuck Grassley and Ron Wyden have publicly warned that if public employees are committed to blowing the whistle and internal channels are compromised, it is to be expected that some will anonymously seek other ways to voice their misgivings.

Truly meaningful whistleblower protections need to include the option of a legitimate channel for confidential disclosures… However, if potential whistleblowers believe that disclosing waste, fraud or abuse means putting a target on their backs for retaliation, they will be intimidated into silence. The failure to provide such protected alternatives could result in whistleblowers choosing to make unprotected disclosures in public forums, with potential negative consequences for national security.

The CIA’s illegal monitoring of whistleblower communications has been seen as part of the Obama Administration’s Insider Threat programme, which categorically treats leaks of classified information about wrongdoing as aiding America’s enemies. Introduced in an October 2011 executive order as a direct response to US Army whistleblower Chelsea Manning’s disclosures, the programme covers “virtually every federal department and agency”, including those who are not concerned with national security matters.

A series of reports by McClatchy over the past year describe a range of measures designed to encourage public officials to report on colleagues who they perceive to be exhibiting unusual behaviour. The programme has taken profiling to extreme lengths: late last year it was revealed that the personal details of 5,000 US citizens who had purchased a book on defeating polygraph tests had been retained on the off-chance that they might apply for a job in a federal agency at some point in the future.

This new controversy about the Insider Threat programme exacerbates an already deeply problematic situation for potential whistleblowers within the US intelligence community. Recent public statements by officials responsible for whistleblower protection within the NSA display a reluctance to take complaints seriously, suggesting that within that agency at least, officials see their role as containing rather than engaging with the concerns of employees.

“Don’t bother me with this”

In a recent interview for PBS, the NSA’s former General Counsel Vito Potenza admitted that he would have dismissed Thomas Drake’s criticisms of US warrantless wiretapping:

If he came to me, someone who was not read into “The Program,” right, and not a part of what we were doing and told me that we were running amok essentially and violating the Constitution and it was in that timeframe when there was an awful lot going on and we were all worried about the next [terrorist] attack, there’s no doubt in my mind I would have told him, you know, go talk to your management. Don’t bother me with this. I mean, you know, the minute he said, if he did say you’re using this to violate the Constitution, I mean, I probably would have stopped the conversation at that point quite frankly. So, I mean, if that’s what he said he said, then anything after that I probably wasn’t listening to anyway.

Drake subsequently blew the whistle to the media, and before the government’s case collapsed just days ahead of trial, he was facing an Espionage Act charge that could have imprisoned him for decades.

Similarly, Edward Snowden made enquiries within the NSA about the legality and morality of that agency’s mass, unchecked surveillance. He spoke up at least ten separate times — the Office of the Director of National Intelligence has in fact released one of Snowden’s emails. When he was ignored, Snowden was compelled to give documents detailing the NSA’s spying programs to investigative journalists.

In February this year, NSA Inspector General George Ellard, the official responsible for dealing with whistleblower communications, outlined his likely response to a complaint about the collection of US call data:

Ellard was asked what he would have done if Snowden had come to him with complaints. Had this happened, Ellard says would have said something like, “Hey, listen, fifteen federal judges have certified this program is okay.” (He was referring to the NSA phone records collection program.)

“I would also have an independent obligation to assess the constitutionality of that law,” Ellard stated. “Perhaps it’s the case that we could have shown, we could have explained to Mr. Snowden his misperceptions, his lack of understanding of what we do.”

Insufficient security or insufficient democracy?

The Insider Threat programme and the stated attitudes of the very officials responsible for facilitating internal channels draw a picture of a US administration that is deeply hostile, not only to disclosure of government information, but to internal criticism of its activities from those charged to carry them out.

Famously, President Obama has overseen the prosecution of more Espionage Act cases than all previous presidents combined. The majority of those cases concern individuals trying to blow the whistle on wrongdoing. Within their number include cases, like that of Thomas Drake, where employees have tried to make their case within the ‘official channels’ ostensibly created to facilitate internal whistleblowing.

It is ironic that the United States has responded to disclosures of illegality and abuse, not by subjecting its programmes to democratic input or ensuring that future whistleblowers have better options, but by cracking down on those who speak up and the journalism they enable. The US administration has treated whistleblowers as an issue of insufficient security rather than insufficient democracy.