by Dana Gold
On Monday, October 20, Professor Lawrence Lessig interviewed Edward Snowden, one of the most famous whistleblowers in recent history, about institutional corruption and the National Security Agency (NSA).
Snowden’s story is graphic in almost all respects, and his name is now synonymous with “whistleblower,” a term that, while arguably less pejorative than in the past, still suggests “tattletale,” “narcissist” and “traitor” as much as it does “courageous employee” and “ethical integrity.” Wide public awareness of Snowden’s disclosures about the NSA’s massive domestic surveillance practices and his life in exile under threat of prosecution affords an ideal opportunity to educate the public about two key aspects of whistleblowing:
- why whistleblowers—employees who disclose serious wrongdoing—are critical to promoting institutional accountability and fighting corruption, especially when institutions themselves are corrupted; and
- why vilifying whistleblowers as “disloyal troublemakers” and problems to address, rather than recognizing them as effective tools to avoid risk and ensure compliance, directly undermines institutions’ effective execution of their missions and invites a raft of avoidable costs.
At the same time, Snowden’s story, in all of its drama, extensive media coverage, and setting in the national security context, may unwittingly exacerbate misunderstandings and negative beliefs about whistleblowers that are corruptive to institutions and threaten the public interest.
Snowden: a “Teachable Moment” for Institutional Corruption and the Necessity of Whistleblowers
Snowden’s biggest fear about blowing the whistle on the NSA’s mass collection of domestic phone and electronic communications was that “nothing will change,” a common fear shared by most whistleblowers who risk speaking out about wrongdoing. His fears were dispelled almost immediately: the content of his disclosures generated swift reactions, from widespread public discussions about privacy protections, to Silicon Valley companies taking steps to assure their consumers that they are protecting private information and resisting NSA demands, to judicial review finding that the NSA’s mass collection of Americans’ phone records is likely unconstitutional, to legislative efforts to rein in NSA surveillance abuses, to an Obama-appointed panel issuing a 300-page report finding that “the NSA’s storage of phone data ‘creates potential risks to public trust, personal privacy, and civil liberty’ and that as a general rule, ‘the government should not be permitted to collect and store mass, undigested, non-public personal information’ about Americans to be mined for foreign intelligence purposes.” Snowden’s disclosures have done for discussions and practices about privacy what 9/11 did for discussions about terrorism; we are living in a “post-Snowden” world because of the power of his disclosures.
Whistleblowers have historically been one of the most effective means of identifying illegality, corruption, and threats to public health, safety and the environment—they are insiders, and often experts, with access to information and thus have evidence and credibility that, when working in partnership with journalists, attorneys, watchdog organizations, Congress or oversight agencies, can catalyze dramatic reforms to protect the public interest and promote compliance. For example:
- Walt Tamosaitis’s warnings about dangerous design flaws in the Waste Treatment Plant at the Hanford nuclear site, intended to process much of the 56 million gallons of radioactive and toxic waste left over from Cold War plutonium production, resulted in Congressional and agency investigations validating his concerns, new legislation expanding federal contractor whistleblower protection rights, and shut-down of the plant pending resolution of the technical issues;
- Dr. David Graham, senior scientist with the FDA, proved that the popular pain medication Vioxx was responsible for the deaths of 45,000 Americans alone. After he blew the whistle, the company withdrew the drug from the market.
- Whistleblower Ken Kendrick’s disclosures about horrifically unsanitary conditions at Peanut Corporation of America’s Texas plant that caused mass salmonella poisonings contributed to one of the largest food recalls in history, corporate bankruptcy, a criminal prosecution, and passage of the Food Safety Modernization Act of 2010.
- Most recently, Carmen Segarra, an examiner with the Federal Reserve Bank of New York, released tapes clearly demonstrating the Fed’s deference to Goldman Sachs, the bank it was charged with overseeing, even in the face of ample evidence of violations. Within days of her disclosures, Goldman issued a new Conflicts of Interest policy that complies with federal standards and the Senate is calling for hearings into NY Fed’s enforcement failures.
We are familiar with the many forces that corrupt institutions and that then drive actions, or inactions, that run counter to the institution’s purpose, its long-term interests, and the public good, such as conflicts of interest, the influence of money in politics, or performance incentives that reward profit at the expense of safety, all of which have been objects of extensive study by Fellows as part of the Edmond J. Safra Center for Ethics Research Lab’s five-year focus on institutional corruption. The pervasiveness of institutional corruption that leads to corporate deviance and government enforcement failures means that we must rely on individuals of conscience—ethical, courageous employees—to, typically at great professional and personal risk, use the sanitizing power of truth to prevent or mitigate serious abuses and wrongdoing.
With institutional accountability so dependent on the willingness of employees to speak up at great risk, we’re in an increasingly precarious situation, because the other force at play is the systemic, pervasive, deeply-embedded belief of those in positions of power in both industry and government that equates good performance with not speaking up about problems, and that employees who raise concerns in the workplace are the problems to address rather than the problems they disclose.
This belief—what I term the problem of the “vilified whistleblower”—is profoundly short-sighted given the high costs that predictably follow. Repressed workplaces keep even larger problems from being identified, thus reducing opportunities to prevent or mitigate disasters. When an employee does dare to speak up, behavior driven by vilification can lead to legal actions, which are expensive in both in time and money to defend, with unknown exposure for liability after protracted litigation. Lawsuits distract from the work of the institution and lower employee morale. Adverse media exposure can lead to congressional and agency oversight investigations, fines or loss of contracts, loss of shareholder value, bankruptcy, weakened public trust, and decrease in brand value and consumer loyalty.
These costs are entirely predictable, and most often avoidable if an institution’s management encourages rather than squelches employee disclosures. But the more significant the disclosure, the more likely we see behavior driven by whistleblower vilification. In Snowden’s case alone, we’ve seen a battery of lawsuits, technology companies scrambling to reassure customers that their privacy interests are paramount, ongoing Congressional hearings and oversight investigations, constant media exposure, and public trust in government and business further eroded. And of course the chilling effect the NSA’s and Obama administration’s attacks on Snowden have had on the intelligence community is significant, only countered by the profound impact on public discourse and reform generated by Snowden’s disclosures. Similar costs can be seen in countless examples of institutions retaliating against and failing to heed the concerns of whistleblowers—just see the stories of Walt Tamosaitis/Department of Energy/Bechtel, David Graham/FDA/Merck, Ken Kendrick/PCA and Carmen Segarra/NY Fed/Goldman Sachs mentioned earlier.
Snowden’s case also typifies the most egregious manifestations of the institutional belief that whistleblowers are problems to be addressed rather than sources of risk management and mechanisms for promoting compliance—the focus on the “messenger” rather than the “message.” Predictable reprisal follows from this belief: attempts at character assassination were really the only tools available to the challenged establishment because Snowden was well aware that had he continued to try to pursue internal channels and stayed in the United States, his fate would have matched those of the NSA whistleblowers who preceded him. Bill Binney, Kirk Wiebe, Tom Drake and Edward Loomis all raised similar concerns internally about the NSA’s unconstitutional surveillance practices, and they suffered FBI agents coming to their homes with guns drawn and being investigated and/or charged under the Espionage Act, their lives of dedicated public service destroyed, with no reforms resulting from their efforts to course-correct the NSA’s policies and practices.
While the reprisal techniques that we’ve seen in the national security context are extreme, they are emblematic of how institutional management across all issues and sectors typically views, and then responds, to whistleblowers, generally employing strategies of direct and indirect reprisal that include attacks on their quality of work and character, demotions and reductions in work responsibilities, harassment, termination, and even outright personal and physical threats. This predictable response has the direct effect of chilling employees whose professional and personal compasses value “doing the right thing,” and thus creates a culture that perpetuates other forms of institutional corruption that lead to outright illegality and avoidable disasters.
No one wins under the current paradigm that vilifies whistleblowers: not businesses, not government, not the public, and certainly not the whistleblowers.
Misperceptions about Snowden Fuel Whistleblower Vilification
While we can see Snowden’s experience as an instructional primer on both the value of whistleblowers and the costs of vilifying them, there are elements of his story—fed by the character assassination reprisal tactics of the government—that perpetuate many of the misperceptions about whistleblowers and contribute to the view that whistleblowers are problems to be addressed, rather than potential solutions.
- Misperception: Whistleblowers, like Snowden, are employees who report problems externally.
- Reality: Most whistleblowers report internally first, and only management reprisal and failure to address their concerns necessitates external disclosure. While Snowden made initial attempts to raise concerns, he decided to make his disclosures externally through the media because he witnessed how others who had made similar disclosures were treated and the lack of reform to NSA surveillance practices. Employees who raise serious concerns internally to managers or through other internal channels are indeed whistleblowers under most whistleblower protection laws, despite some pervasive but misguided beliefs that whistleblowers are only those who go outside of the organization to disclose problems. But the more management engages in practices that stem from a belief that employees who identify problems are themselves problems to be addressed rather than the best risk-management and mission-alignment tool in an institution’s arsenal, the more employees will feel compelled to seek resolution outside of the organization, or worse—and more likely—not speak at all.
- Misperception: Snowden should have used internal channels exclusively, or he should return to the United States to “face the consequences” of his whistleblowing.
- Reality: There are no whistleblower protection provisions for intelligence community contractors and the Espionage Act does not provide for a public interest defense. But reprisal tactics that seek to paint Snowden as a traitor interested in hurting the national interest, often reported by the media, feed into societal beliefs that whistleblowers are motivated be self-interest rather than integrity.
- Misperception: Disclosing evidence of wrongdoing is illegal and should be prosecuted.
- Reality: Most whistleblowers do not work in the context of national security or with classified information. In Snowden’s case, it would have been nearly impossible to expose the policies and practices of the NSA without releasing classified information, though without Snowden’s willingness to violate classification rules, there could be almost no way to know about more egregious illegal practices hidden by the veil of classification and secrecy that shrouds the NSA.1 But whistleblowers who disclose fraud, public health or consumer safety threats, environmental violations, or other abuses—in other words, most whistleblowers—are not operating in the national security context at all.
Notably, however, while most whistleblowers are not faced with the conflict of having to break the law to disclose evidence of greater wrongdoing, we are seeing the increasing use of new reprisal tactics that seek to replicate the chilling effect of charging NSA whistleblowers with prosecution under the Espionage Act: efforts to criminalize whistleblowing outside of the national security context. For instance, federal agency managers are increasingly referring whistleblowers for criminal investigations and prosecutions when they engage in protected whistleblower activity. Companies are threatening lawsuits to enforce secrecy agreements or for “theft” of company property, when the property is in fact evidence of company wrongdoing. And Big Ag states are working to pass legislation that would criminalize individuals who record undercover videos or take photographs at agricultural facilities.
Campaigns of misinformation and new reprisal tactics against whistleblowers speak to the power whistleblowers wield as the most effective antidote to corruption and how accountability has come to depend so much on employees willing to identify wrongdoing. Even more problematic than the chilling effect intended by these efforts is the fact that these strategies fuel, and are fueled by, the more ingrained and toxic belief that employees who raise concerns in the workplace are the problems to address rather than the problems they disclose.
Time for a Paradigm-Shift
A two-fold paradigm shift needs to occur. First, those in positions of institutional leadership need to embrace, and incentivize, a view of whistleblowers as the most effective tool for managing risk, ensuring compliance, promoting long-term value, and maintaining alignment with the institution’s core mission. Second, cultural vilification needs to instead run to those individuals and institutions that both fail to seriously investigate and act on concerns raised by employees and who retaliate against them in any way. Not until institutions and managers that vilify whistleblowers and ignore their concerns are viewed—and treated—as the true risk to the institution will the problem of institutional corruption that is eroding the effectiveness of, and public trust in, our government and businesses stand a chance of being addressed.
While Edward Snowden may now be the poster child of whistleblowing, there are literally hundreds of Edward Snowdens among us—who are lauded once their disclosures come to light and affect real changes for the better, but who suffer a tremendous cost for their courage. But for every Edward Snowden, there are even more who stay silent because employees who raise concerns are so universally vilified in the workplace. We need this new paradigm for our whistleblowers, for our institutions, and for ourselves.
1. Notably, there have been no charges leveled against James Clapper, former Director of National Intelligence, for lying to Congress. When asked by Oregon Senator Ron Wyden three months before Snowden’s disclosures whether the NSA was collecting data on U.S. citizens, Clapper audaciously replied, “No, sir. Not wittingly.”