gap – Courage Foundation

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.

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

To mark the one-year anniversary of NSA revelations, several privacy and whistleblower groups have taken a look back at what we’ve learned since Edward Snowden blew the whistle on mass surveillance.

ACLU

The American Civil Liberties Union created a video, entitled, ‘The NSA knew our secrets. One year later, we know theirs.’

The ACLU also published a letter from Edward Snowden, remarking on what’s happened thus far and encouraging further action:

In the long, dark shadow cast by the security state, a free society cannot thrive.

That’s why one year ago I brought evidence of these irresponsible activities to the public — to spark the very discussion the U.S. government didn’t want the American people to have. With every revelation, more and more light coursed through a National Security Agency that had grown too comfortable operating in the dark and without public consent. Soon incredible things began occurring that would have been unimaginable years ago. A federal judge in open court called an NSA mass surveillance program likely unconstitutional and “almost Orwellian.” Congress and President Obama have called for an end to the dragnet collection of the intimate details of our lives. Today legislation to begin rolling back the surveillance state is moving in Congress after more than a decade of impasse.

Finally, the ACLU has a timeline of the revelations thus far.

EFF

The Electronic Frontier Foundation’s Katitza Rodriguez recounted what we’ve learned about various NSA surveillance programs, and concludes:

…now that a year has passed it’s clear that we need to update both our global technical infrastructure and local laws, consistent with long-standing international human rights standards, in order to regain any reasonable degree of privacy. Specifically, we must end mass surveillance. Politicians in every country need to stand up to the NSA’s incursions on their territory; the United States needs to reform its laws to recognize the privacy rights of innocent foreigners, and the international community needs to set clear standards which makes any state conducting mass surveillance a pariah.

GAP

The Government Accountability Project’s Dylan Blaylock, in a piece titled, ‘On One-Year Anniversary of Snowden Disclosures, IC Contractors Lack Whistleblower Protections,’ writes:

One of the great lessons of the Snowden disclosures has been that members of Congress have not been adequately overseeing these programs. Contractors on intelligence operations must have real protection for legitimate whistleblower disclosures made to Congress, congressional staff with appropriate security clearance, or government watchdogs. Further, it is not adequate only to protect disclosures made to the intelligence committees. Such a monopoly in information needed to conduct congressional oversight does not exist in any other context in the federal government.

There cannot be any doubt about the consequences from congressional action, or inaction, on whistleblower rights. Without authentic legal protections for making disclosures to Congress and government watchdogs, enforcement of the Constitution and privacy rights will remain an honor system for agencies that have been secretly abusing their power. To identify government abuse, Congress must extend best practice whistleblower protections to IC contractor workers.