Whistleblower

Pentagon Papers

whistleblower is a person who exposes secretive information or activity that is deemed illegal, unethical, or not correct within a private or public organization such as a violation of a law, company regulation, or threat to public interest/national security, as well as fraud, and corruption.

U.S. civic activist Ralph Nader is said to have coined the phrase, but he in fact put a positive spin on the term in the early 1970s to avoid the negative connotations found in other words such as ‘informer’ and ‘snitch.’ However, the origins of the word date back to the 19th century. The word is linked to the use of a whistle to alert the public or a crowd about a bad situation, such as the commission of a crime or the breaking of rules during a game.

Those who become whistleblowers can choose to bring information or allegations to surface either internally or externally. Internally, a whistleblower can bring his/her accusations to the attention of other people within the accused organization such as an immediate supervisor.

Externally, a whistleblower can bring allegations to light by contacting a third party outside of an accused organization such as the media, government, law enforcement, or those who are concerned. Whistleblowers, however, take the risk of facing stiff reprisal and retaliation from those who are accused or alleged of wrongdoing.

Because of this, a number of laws exist to protect whistleblowers. Some third-party groups even offer protection to whistleblowers, but that protection can only go so far. Whistleblowers face legal action, criminal charges, social stigma, and termination from any position, office, or job.

Two other classifications of whistleblowing are private and public. Public sector whistleblowing is more likely to result in criminal charges and possible custodial sentences. A whistleblower who chooses to accuse a private sector organization or agency is more likely to face termination and legal and civil charges.

Whistleblowing is a topic of ongoing ethical debate. Leading arguments in the ideological camp that whistleblowing is ethical maintain that whistleblowing is a form of justified civil disobedience, and aims to protect the public from government wrongdoing. The opposite camp sees whistleblowing as unethical for breaching confidentiality, especially in industries that handle sensitive client or patient information.

Hundreds of laws grant protection to whistleblowers, but stipulations can easily cloud that protection and leave whistleblowers vulnerable to retaliation and legal trouble. However, the decision and action has become far more complicated with recent advancements in technology and communication. Whistleblowers frequently face reprisal, sometimes at the hands of the organization or group they have accused, sometimes from related organizations, and sometimes under law.

The earliest usage of the term is an 1883 story in the ‘Janesville Gazette’ referring to a policeman who used his whistle to alert citizens about a riot as a ‘whistle blower,’ without a hyphen. By the year 1963, the phrase had become the hyphenated word, ‘whistle-blower.’ The word began to be used by journalists later in the 1960s for people who revealed wrongdoing, such as Nader. It eventually evolved into the compound word ‘whistleblower.’

Most whistleblowers are internal whistleblowers, who report misconduct on a fellow employee or superior within their company through anonymous reporting mechanisms often called hotlines. One of the most interesting questions with respect to internal whistleblowers is why and under what circumstances do people either act on the spot to stop illegal and otherwise unacceptable behavior or report it. There are some reasons to believe that people are more likely to take action with respect to unacceptable behavior, within an organization, if there are complaint systems that offer not just options dictated by the planning and control organization, but a choice of options for absolute confidentiality.

In business, whistleblowing hotlines are usually deployed as a way of mitigating risk, with the intention of providing secure, anonymous reporting for employees or third party suppliers who may otherwise be fearful of reprisals from their employer. As such, implementing a corporate whistleblowing hotline is often seen as a step towards compliance, and can also highlight an organization’s stance on ethics. It is widely agreed that implementing a dedicated service for whistleblowers has a positive effect on an organizational culture. In 2018, the ‘Harvard Business Review’ published findings to support the idea that whistleblowing hotlines are crucial to keeping companies healthy, stating ‘More whistles blown are a sign of health, not illness.’

External whistleblowers, however, report misconduct to outside persons or entities. In these cases, depending on the information’s severity and nature, whistleblowers may report the misconduct to lawyers, the media, law enforcement or watchdog agencies, or other local, state, or federal agencies. In some cases, external whistleblowing is encouraged by offering monetary reward.

Recognizing the public value of whistleblowing has been increasing over the last 50 years. In the United States, both state and Federal statutes have been put in place to protect whistleblowers from retaliation. The United States Supreme Court ruled that public sector whistleblowers are protected under First Amendment rights from any job retaliation when they raise flags over alleged corruption. Exposing misconduct or illegal or dishonest activity is a big fear for public employees because they feel they are going against their government and country.

Individual harm, public trust damage, and a threat of national security are three categories of harm that may come as a result of whistleblowing. Revealing a whistleblower’s identity can automatically put their life in danger. Some media outlets associate words like ‘traitor’ and ‘treason’ with whistleblowers, and in many countries around the world, the punishment for treason is the death penalty, even if whoever allegedly committed treason may not have caused anyone physical harm. A primary argument in favor of the death penalty for treason is the potential endangerment of an entire people. In other words, the perpetrator is perceived as being responsible for any harm that befalls the country or its citizens as a result of their actions. In some instances, whistleblowers must flee their country to avoid public scrutiny, threats of death or physical harm, and in some cases criminal charges.

There are examples of ‘early warning scientists’ being harassed for bringing inconvenient truths about impending harm to the notice of the public and authorities. There have also been cases of young scientists being discouraged from entering controversial scientific fields for fear of harassment.

In a few cases, harm is done by the whistleblower to innocent people. Whistleblowers can make unintentional mistakes, and investigations can be tainted by the fear of negative publicity. One case of this was claims made in part of the Canadian health ministry, by a new employee who thought that nearly every research contract she saw in 2012 involved malfeasance. The end result was the sudden firing of seven people, false and public threats of a criminal investigation, and the death of one researcher by suicide. The government ultimately paid the innocent victims millions of dollars for lost pay, slander, and other harms, in addition to CA $2.41 million spent on the subsequent 2015 investigation into the false charges.

Whistleblowers are sometimes seen as selfless martyrs for public interest and organizational accountability; others view them as ‘traitors’ or ‘defectors.’ Some even accuse them of solely pursuing personal glory and fame, or view their behavior as motivated by greed in qui tam cases (a writ through which private individuals who assist a prosecution can receive for themselves all or part of the damages or financial penalties recovered by the government as a result of the prosecution).

Many whistleblowers have stated that they were motivated to take action to put an end to unethical practices, after witnessing injustices in their businesses or organizations. A 2009 study found that whistleblowers are often motivated to take action when they notice a sharp decline in ethical practices, as opposed to a gradual worsening. There are generally two metrics by which whistleblowers determine if a practice is unethical. The first metric involves a violation of the organization’s bylaws or written ethical policies. These violations allow individuals to concretize and rationalize blowing the whistle. On the other hand, ‘value-driven’ whistleblowers are influenced by their personal codes of ethics. In these cases, whistleblowers have been criticized for being driven by personal biases.

In addition to ethics, social and organizational pressure are a motivating forces. A 2012 study identified that individuals are more likely to blow the whistle when several others know about the wrongdoing, because they would otherwise fear consequences for keeping silent. In cases when one person is causing an injustice, the individual who notices the injustice may file a formal report, rather than confronting the wrongdoer, because confrontation would be more emotionally and psychologically stressful. Furthermore, individuals may be motivated to report unethical behavior when they believe their organizations will support them. Professionals in management roles may feel responsibility to blow the whistle in order to uphold the values and rules of their organizations.

Investigation of retaliation against whistleblowers under 23 federal statutes falls under the jurisdiction of Directorate of Whistleblower Protection Program of the United States Department of Labor’s Occupational Safety and Health Administration (OSHA). New whistleblower statutes enacted by Congress, which are to be enforced by the Secretary of Labor, are generally delegated by a Secretary’s Order to OSHA’s Directorate of Whistleblower Protection Program (DWPP). The patchwork of laws means that victims of retaliation need to be aware of the laws at issue to determine the deadlines and means for making proper complaints. Some deadlines are as short as 10 days (Arizona State Employees have 10 days to file a ‘Prohibited Personnel Practice’ Complaint before the Arizona State Personnel Board), while others are up to 300 days.

The Espionage Act of 1917 has been used to prosecute whistleblowers in the United States including Edward Snowden and Chelsea Manning. In 2013, Manning was convicted of violating the Espionage Act and sentenced to 35 years in prison for leaking sensitive military documents to WikiLeaks. The same year, Snowden was charged with violating the Espionage Act for releasing confidential documents belonging to the NSA.

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