Monday, July 26, 2010

Whistleblowing vs. Leaks

There appears to be a great deal of confusion about the concept of "whistleblowing", not much helped by media coverage.

Under U.S. law, in simple terms, a "whistleblower" is somebody who reports an employer's bad conduct to an agency with oversight over the employer. You're working for a mining company, the mining company is committing safety violations, so you report the violations to the MSHA; or they're committing environmental violations, so you report the violations to the EPA; or they're committing wage and hour violations so you complain to the state or federal department of labor. Whistleblower protections come into play, as your employer is not supposed to retaliate against you for reporting their conduct.

Leaking is when you take your employer's confidential information and you provide it to somebody outside of your organization, usually the media, for the purpose of exposing your employer's conduct. Leaking is not the same as whistleblowing. Unlike whistleblowing, a statutorily protected activity, leaking is usually going to be tortious and often criminal in nature.

Circumstances arise when the oversight system breaks down or is corrupted, and a frustrated employee leaks information in order to end abuses that won't otherwise be stopped. There are also times when an employer's activities are lawful, but the employee is sufficiently offended by those activities or their implications that he chooses to leak them to the media. In political circles, strategic leaks are pretty common - giving the media confidential information with the goal of helping your own party, damaging the other, or both.

I have heard complaints about the Obama Administration having pledged to protect whistleblowers, yet having chosen to prosecute people who have leaked classified information to the media. The thing is, that's not a contradiction. While it may be commonplace to speak of somebody who leaks information to the media as a "whistleblower, for reasons previously discussed the act of leaking classified information to the media is not whistleblowing and is a crime.

I personally believe that the government overclassifies matters, and that classification is often used not to advance national security but to cover up embarrassing facts or mistakes. The Supreme Court case that legitimized the State Secrets Privilege, United States v. Reynolds, is now widely regarded as an abuse by the government, with the government claiming "state secrets" in an accident report that, in fact, contained nothing of the sort. Cover-ups and fake stories such as occurred in the Jessica Lynch and Pat Tillman cases would not be possible but for the suppression of the factual record. I can understand the frustration of somebody who is in a bureaucracy that is committing bad acts, but where there is either no effective oversight or the agencies with oversight have no interest in correcting their conduct.

But even when it serves the public good, leaking is at best a form of civil disobedience - intentionally breaking the law to serve that greater good. And yes, you can be prosecuted for civil disobedience, no matter how good your motives.

Don't get confused when a head of state offers to protect whistleblowers, by thinking they won't prosecute those responsible for leaks. Even when its leaders are acting in good faith, no government likes leaks.

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