New Internationalist

Don’t shoot the messenger!

April 2014

Whistleblowing appears to be on the increase. But so is the war against those who do it. Where will it end? asks Vanessa Baird.

keynote image whistleblower [Related Image]
© Ben Jennings/Cartoon Movement

Is this the age of the whistleblower?

It would seem so, from the column inches, air time and cyberspace given to Edward Snowden.

According to campaigners, the 29-year-old former systems analyst at the US National Security Agency (NSA) is close to being the perfect whistleblower.

A quick look at the video clip interview with Laura Poitras shows why.1 Measured, thoughtful, Snowden comes across as your average guy, intelligent but with no political axe to grind. He just thinks we should know that the secret services are capturing and storing every phone call we make or internet message we send and that our privacy is being violated wholesale. And he thinks we should at least debate whether we are happy with that or not.

What is a whistleblower?

The term is used loosely to describe any person who has and reports insider knowledge of misconduct or illegal activity occurring within an organization.

A distinction is sometimes made between a ‘source’ – who is anonymous – and a ‘whistleblower’, who is identified. So, Chelsea Manning began as a ‘source’, posting anonymously on Wikileaks, but became a ‘whistleblower’ once outed by hacker Adrian Lamo.

And Julian Assange is not strictly speaking a whistleblower at all, but a publisher who provides a media platform for whistleblowers.

His modest demeanour, his very ordinariness, is in sharp contrast to the scale and impact of his revelations. The sheer amount of data he was able to pass on to select media – some 1.7 million files – beats Chelsea Manning’s impressive 251,287 diplomatic cables into a hat.

Since the advent of Wikileaks, whistleblowing has gone from being a ‘cottage’ to an ‘industrialized’ activity, to use the analogy suggested by Icelandic information activist Smári McCarthy.

Yet for most who do it, making disclosures about wrongdoing is a lonely, limiting and isolating affair. It’s not like being on a production line with your mates.

Paradoxically, this also applies to the most celebrated. Edward Snowden and Wikileaks founder Julian Assange may have achieved rock-star status but they are fugitives, effectively exiled. Chelsea (formerly Bradley) Manning is serving 35 years in a military jail.

The Obama administration, for all its rhetoric of free speech, has started more prosecutions against whistleblowers than all presidents combined since 1917.2

‘War against whistleblowers is a toxic trend,’ says Jesslyn Radack, Snowden’s lawyer and a former US Justice Department whistleblower herself.3

And not just in the US. Japan recently approved sweeping government powers to punish those who would expose awkward truths about the country’s nuclear industry, following the Fukushima disaster.4

A dangerous vocation

At the source of most exposures of wrongdoing is not a government regulator or police investigator or even an investigative journalist, but a whistleblower. A moral insider who breaks ranks to tell the truth about the malpractice she or he sees.

Once the scandal has broken, such people will be hailed as heroes, admired for their integrity by a public grateful that such courageous and outspoken people exist.

But gratitude offers no protection.

In 2010, millions of Chinese parents were horrified to find that their children were drinking milk that had become mixed with toxic chemicals at fresh milk collection points. Two years later, one of the two men who exposed the practice, farmer Jiang Weisuo, was murdered in circumstances that have never been explained.

More recent is the case of Lawrence Moepi, a fearless and principled South African auditor, dubbed the ‘fraudsters’ worst nightmare’. Last October, as he arrived at his Johannesburg office, he was shot and killed by, it is believed, hired assassins. He had been investigating several suspected corruption cases, including a notorious arms deal.

Silencing or exacting retribution can take many forms, violent and direct – or more devious.

Craig Murray, a former British ambassador who exposed how the British and US secret services were supporting torture in Uzbekistan, was subsequently accused of asking for sex in exchange for visas. It took him 18 months to clear his name.

Janice Karpinsky, the most senior woman in the US army, was arrested and accused of shoplifting the day after revealing that Donald Rumsfeld ordered the torture of prisoners at Abu Ghraib.

Murray comments: ‘Whistle­blowers are rare because it is a near suicidal vocation and everyone else is too scared to help. And if your whistleblowing involves the world of war and spying, they will try to set you up on false charges… and not just sack you but destroy you.’5

Far from being rebels and outsiders, most disclosers are diligent, conscientious, and obsessive insiders

While public opinion is generally on the side of whistleblowers, governments, institutions and employers are not. When it comes to the really embarrassing and damaging disclosures, those in power will do all they can to turn the revealer into the enemy.

This has worked on a significant minority of the US public, furious with Manning and Snowden for allegedly putting at risk the security of all Americans. When pressed to say exactly how, the political and secret service players have failed to come up with one concrete example, resorting to vague comments about ‘agents in the field’ and the fact that ‘terrorists will now change their tactics’.

These are high-profile, international cases. But most whistleblowing happens at a far more modest, local level. Sometimes the revelations will reach the local press or emerge during an employment tribunal after the discloser has been dismissed or demoted. Often media outlets are afraid to investigate the information whistleblowers bring them, because they cannot take the risk of a costly libel or defamation suit, or because the story is too complicated or time-consuming to corroborate.

Legal protection

‘Effective whistleblowing arrangements are a key part of good governance,’ says the British organization Public Concern At Work(PCaW). ‘A healthy and open culture is one where people are encouraged to speak out, confident that they can do so without adverse repercussions, confident that they will be listened to, and confident that appropriate action will be taken.’

If only. In the topsy-turvy world of whistle­blowing it tends to be the person revealing wrongdoing, rather than the wrong­doer, who is punished and who ends up losing most – typically their job and career, but often also their relationship, their home, even their liberty.

The complex dynamics at play when someone discloses unwelcome information are explored by psychoanalyst David Morgan in his article ‘I had to do it’. Far from being rebels and outsiders, most disclosers are diligent, conscientious, somewhat obsessive insiders, who think their employers will be grateful for the information given and will naturally want to do the right thing.

An increasing number of countries have laws on their statute books – with more in the pipeline – specifically to protect whistleblowers from retaliation, harassment or victimization. But most laws are severely limited in their scope and effectiveness. For example, in Canada and Australia, the law does not apply to people working in the private sector, while New Zealand’s law is limited to government agencies.6,7

In Canada, a fierce libel regime contributes to creating possibly the most hostile environment in the English-speaking world. Britain is one of the few European countries with a law that applies across both private and public sectors, but in practice British whistleblowers do not fare too well either and libel laws that favour the rich have a chilling effect.8 US law is patchy and contradictory, extremely hostile to those who speak out in some areas, but enabling large financial rewards for those who disclose fraud against the government.9

While whistleblowers may need to be compensated for loss of earnings, the awarding of massive cash settlements is controversial. Cathy James of the British PCaW sees ‘moral hazard’ in a US-style system. In her view: ‘Whistleblowing should be seen as a very positive issue, everyone should be encouraged to protect the public interest. I don’t want to live in a society where people do the right things because they think they are going to benefit.’

Going public on confidential information may put disclosers on the wrong side of the law, especially if they have smuggled out documents or broken official secrecy arrangements. This has led to absurd examples, like that of the banker Bradley Birkenfeld who exposed $780 million tax fraud at UBS, receiving a Swiss prison sentence for breaking confidentiality.

Under British law, disclosers who break the law to reveal wrongdoing can claim, in their defence, that they were acting in the ‘public interest’. This is not widely available elsewhere (see the case of Chelsea Manning in ‘Dead bastards’).

‘I now recommend leaking’

Considerable energy goes into lobbying for laws and practices to protect properly those who speak out and many whistleblower organizations believe this is the way forward.10

Brian Martin is a veteran campaigner with Whistleblowers Australia who has talked with hundreds of disclosers and written a highly regarded practical guide on the topic.

Democracy dies behind closed doors – and now too in smashed hard-drives in newspaper offices

And he has come to the conclusion that the intense focus on legal protection is misguided.

‘It seldom works and can even make whistleblowers more vulnerable; they think they are protected but aren’t.’

Instead, he now encourages potential disclosers to develop their skills and understanding so that they can be more effective in bringing about change. The most effective strategies, he says, involve taking messages to a wider audience, through mass media, social media or direct communication.

‘I now recommend leaking – anonymous whistleblowing – whenever possible.’

This may not come naturally to most disclosers, who are conscientious employees who believe the system works. They will try official channels first and are reluctant to contact the media or action groups.

Did you know...

In Britain, a survey of 1,000 whistleblowers found that after raising a concern:
19% faced formal action (disciplinary or demotion). 15% were dismissed.
74% said nothing was done about the wrongdoing.

In India:
150 estimated number of whistleblowers harassed or jailed in past 5 years.
20 estimated number killed.

In China:
15% of those who report Chinese government corruption are unhappy mistresses of government officials.

The biggest ever reward to a whistleblower who helped recover substantial investor funds, paid out by the US Securities and Exchange Commission was $14million.

But, Martin points out, whistleblowers are ‘hardly ever effective in challenging the problems they attempt to expose. This sounds pessimistic. Whistleblowers are courageous but they need a lot of help to be more effective. Probably the best scenario is a link-up between a network of leakers and well-connected action groups.’

Smári McCarthy is another activist who is moving away from the legal protection route. For three years he, and others in his native Iceland, worked to create a model legal environment for leakers, whistleblowers and journalists. They were making good headway until April 2013 when a rightwing coalition government came to power and stalled reform.

Now he is focusing more on technology. There are two laws, he says, that governments have to obey: ‘physics and economics’. He plans to use the former to make mass surveillance – whereby intelligence services gather everybody’s private internet and phone communication – too expensive to do.

He has calculated that the total budget of the ‘Five Eyes’ – that is the communications snooping services of the US, Britain, Australia, Canada and New Zealand combined – is $120 billion a year. With that they can scoop up the data of 2.5 billion internet users, making the cost per person per day a mere 13 cents.

‘My five-year plan is to increase that cost to $10,000 per person per day. The services would have to be a lot more selective and do their job properly.’

How to do it? Encryption – the types that hackers have developed and which the NSA has still, as far as we know, not managed to crack. ‘I use encryption a lot,’ says McCarthy. ‘But we need to make it easier to use and available to everyone.’

This will help disclosers too, he says, because if everybody’s privacy is improved then so is that of whistleblowers. Naturally, their leaks need to be accurate, need to pass the ‘public interest’ test and not gratuitously violate personal privacy.

Snowden and others have revealed the extent to which free speech and civil liberties are being violated by the state, and not just in countries like Russia or China.

More and more information is being classified as top secret and we have no way of debating whether or not it should be.11 The recent Stasi-style destruction of laptops at The Guardian newspaper, under the supervision of Britain’s GCHQ, should serve as a warning. As they say, democracy dies behind closed doors – and now too in smashed hard-drives in newspaper offices.

Those genuinely engaged in disclosing in the public interest need protection all along the communication line – from sources and whistleblowers, through campaigners and journalists, to print or web publishers and distributors. In 2011, under a social-democrat government, Iceland followed Council of Europe recommendations and made it illegal for journalists to expose their sources. In Britain a journalist can be jailed for not doing so. It is even worse in the US: Barrett Brown, a young freelancer, is facing 105 years in prison in connection with the posting of information that hackers obtained from Statfor, a private intelligence company with close ties to the federal government.12

A better world

At its heart, whistleblowing is about the desire for truth to be known, for things to be done properly, and for the world to be made a better place.

A place where big business does not cheat or harm citizens for profit; where hospitals and care homes look after frail and elderly people and banks do not rob their customers. Where politicians see office as public service rather than self-service, priests respect the bodily integrity of children in their charge and military personnel do not go on shooting sprees for the hell of it.

Alex Milan Tracey/NurPhoto/Corbis
Anonymous whistleblowing is now viewed by some experts as the better option. This protester, with a painted ‘Anonymous’ mask, is attending a rally in Portland, US, in support of whistleblowers. Alex Milan Tracey/NurPhoto/Corbis

Sometimes exposure yields tangible results and the information revealed improves or even saves lives. In 1994, US paralegal Merrell Williams leaked internal memos from Brown & Williamson Tobacco company that showed that the company knew it was lying when it claimed that cigarettes were not harmful, that nicotine was not addictive and that it did not market to children.

His action fuelled lawsuits that resulted in an industry pay-out of billions of dollars to pay smokers’ medical bills.13

Whistleblowers act as the guardians of morality, but too often they are solitary martyrs to democracy. As Wikileaks revealed towards the end of last year, the world is currently facing a major multilateral threat to democracy. It is coming not from religious fanatics in turbans but from fundamentalists in suits.

The acronyms TTP and TTIP are enough to lead even the most committed insomniac to the land of nod. But stay awake, please! This is important. These are US-led international trade deals being negotiated – in conditions of unprecedented secrecy – that will give corporations the power to trump national sovereignty and the interests of billions of people. Two secret drafts of the TransPacific Partnership (TPP), obtained by Wikileaks, on intellectual property and the environment show the deals would trample over individual rights and free expression and give powerful companies the right to challenge domestic laws regulating, for example, resource extraction in Peru or Australia. The Transatlantic Trade and Investment Partnership (TTIP) – between the US and the EU – would have a similar impact, making existing national public services such as health and education even more vulnerable to aggressive action by big private corporations from outside. Those trying to save Britain’s national health service from the clutches of private US medical companies know how bad this could be.

More and more information is being classified as secret and we have no way of debating whether or not it should be

Such trade agreements are made at a high level, hatched between a nexus of powerful corporations, governments that do their bidding and secret services that we now know (again, thanks to Snowden) really do use public money to spy on behalf of big business.

The only thing that will counteract the undemocratic and self-serving power of this nexus is a growing network from below that involves whistleblowers, civil society activists and hactivists, journalists and citizens who care.14

Only if we have access to information do we have democracy – and today the most relevant information often comes from whistleblowers.

Only if we can participate, is that democracy real – which is why we need to use the information to take action and stop sleepwalking into totalitarianism, be it that of a corrupt institution or a world order devised by and for a global, corporate élite.

Then the tremendous risks that whistleblowers take, and the sacrifices they make, will not be in vain.

Could you be an effective whistleblower? Find out by going to: Whistleblower quiz

To take it further: action on whistleblowing

ORGANIZATIONS

International

Wikileaks: wikileaks.org

International Whistleblowers, based in Aotearoa /NZ but international in scope: internationalwhistleblowers.com

Whistleblowing Network, an international network of NGOs: whistleblowingnetwork.org

Amnesty International: amnesty.org

PEN International: pen-international.org

Electronic Frontier Foundation: eff.org

Aotearoa/New Zealand

International Whistleblowers: internationalwhistleblowers.com

Australia

Whistleblowers Australia: whistleblowers.org.au, plus The Whistle newsletter, bmartin.cc/dissent/contacts/au_wba/

Britain

Public Concern at Work: pcaw.org.uk

Whistleblowers UK: whistlebloweruk.org

The Whistler: thewhistler.org

Canada

FAIR: fairwhistleblower.ca

United States

GAP (Government Accountability Project): whistleblower.org

Pvt Manning Support Network: bradleymanning.org

BOOKS

Whistleblowing: A Practical Guide by Brian Martin (updated 2013), free to download at: bmartin.cc/pubs/13wb.html

The Corporate Whistleblower’s Survival Guide: A Handbook for Committing the Truth by Tom Devine and Tarek F Maassarani (Berrett-Koehle, 2011)

The Art of Anonymous Activism: Serving the Public While Surviving Public Service, a joint effort of US whistleblower organizations. Available from GAP: whistleblower.org

5 TOP TIPS for would-be whistleblowers

● Contact a whistleblowing charity for advice BEFORE you take action.
● Stick to the facts and what you know for sure; keep records and document evidence.
● Be sure of your motives – don’t confuse private grievance with public concern.
● Be discreet – retaliation is common and whistleblowers can easily come to grief for being too trusting.
● Prepare well – carefully choose the time, place and manner of whistleblowing.

  1. theguardian.com

  2. abc.net.au

  3. 29C3 panel

  4. The Ecologist

  5. Craig Murray craigmurray.org.uk

  6. Canada’s Public Servants Disclosure Act 2000; Australia’s Public Interest Disclosure Act 2013

  7. Protected Disclosure Act 2000

  8. Public Interest Disclosure Act 1998

  9. False Claims Act; Dodd-Frank Wall Street Reforms

  10. The Whistleblowing Commission is calling for a mandatory code of practice

  11. Paste Bin

  12. Government Accountability Project

  13. New York Times

  14. For example, the Alternative Trade Mandate Network.

Front cover of New Internationalist magazine, issue 471 This feature was published in the April 2014 issue of New Internationalist. To read more, buy this issue or subscribe.

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