Protect Whistleblowers before Extending Reporter's Privilege

by emptywheel

I suggested the other day that there were likely to be some unintended consequences if the reporter's shield bill passes as is. What I didn't say in that post is that there is a better way to encourage the free flow of information--particularly in this era when everyone can fulfill the role of journalist: enforce FISA and extend whistleblower protection. Rather than establishing a protected class of people whose protection can and has been abused to shield nasty political smears, rather than extending the privileges of a class that has already proved itself irresponsible with the privileges it has, encouraging the free flow of information at the source achieves many of the same objectives without the potential untoward consequences.

Just take the Risen/Lichtblau wiretap story as an example. If the Administration weren't so worried about more scrutiny into their illegal wiretapping, they could easily use the new shield law, as written, to justify going after Risen and Lichtblau's sources. After all, the bill has an explicit exception for terrorism and national security (admittedly, it would take a little linguistic juggling to be able to claim they needed the source's identity "to prevent an act of terrorism against the United States," but such linguistic juggling is second nature for the sophists running our country). But if there were real whistleblower protection, then Risen and Lichtblau's sources could have gone on the record and explained to us, in explicit terms, why the wiretapping was illegal, rather than having to leak it anonymously to the reporters.

POGO has a post offering another reason why whistelblower protection ought to be extended: because it's good for business.

[T]his report finds that a corporation whose culture does not embrace whistleblowing is actually subject to much more damage due to fraud than a corporation that does embrace whistleblowing. 

Their research revealed that fraud occurred most often when the following two preconditions are present:

1. Perpetrators have deep-seated, personal reasons for engaging in criminal acts; they must have an incentive to commit fraud and be able to rationalise the fraud to themselves.

2. A company that is more likely to victimised by fraud not only lacks sufficient controls to detect fraudulent activity but also lacks ethics, values, programmes and systems that discourage fraud, i.e. a well-developed culture, including systems that encourage and protect employees who expose fraud. [Emphasis added]   

The report then goes on to say:

What can be particularly damaging are situations where employees are unsure about what to do when they become suspicious about the conduct of fellow employees or are themselves confronted with ethical dilemmas.  If a company does not provide clearly-defined channels of communication for its employees it may run the risk of sending the wrong message: that management does not want to hear about problems and/or ethical employees may either be ignored of find themselves the victims of management retaliation.

According to the report, these factors can lead to a “toxic corporate culture,” in which attitudes such as apathy and a disregard for rules, lead to increased instances of fraud.  This corresponding fraud is often exposed by anonymous tip-offs that make headlines and can destroy a company’s reputation.   

The argument here extends to the government as well (a point POGO makes themselves). That is, you're better off getting stuff exposed through a formal whisteblower channel than through anonymous leaks, because you can address problems and fraud proactively, rather than after getting reamed in the press.

Which would be great, if the Administration actually intended to address any of these issues.

Comments

[Neil]

The EW solution, and its clear you've been giving it a great deal of thought, protects whistleblowers under the law when they report illegal goverment conduct, say wiretapping US to US phone calls without a warrant. Does the solution also prosecute a whistleblower when they reveal classified information improperly in the course of blowing the whistle on illegal government conduct or even legal government conduct they thought was illegal? What about when the President has war-footing and orders a national security program that would otherwise be illegal but may or may not be illegal during war and neither the courts nor the legislature has been heard?

[oldtree]

I still marvel at the numbers of, and increasingly ridiculous nature of laws that we have seen in the congress since Reagan declared "look at me, I am stupid, rejoice ye of little brain and those of you with big companies" flag burning, shiavogurgitation, french fries, patriot act....... absurd laws based solely on emotions, and laced with the tools for the despot in training.

we have seen an unscrupulous few provide a haven for pharmacological products that have turned a goodly percentage of our populace into potatoes. With no majority, they must now use force to retain power. Blackwater comes home now, just in time that there is no army or national guard in our country, and just in time for an election. Quaint timing, no?
and everyone is worried about $4 gasoline. How much of the country implodes when it is $8, next year?

I am thankful that a few continue to drill for truth and expose that which justice could address if it wanted to.
many thanks.

[Jodi]

We need an "Offical Secrets Act."

[gabriel christou]

please visit
www.gabrielchristou.blogspot.com

you will see PHOTOS of WHO and WHERE Bin Laden and his NETWORKS ARE….

URGENT…PLEASE HELP…. I CANNOT FROM HERE….. I AM BLOCKED ALL AROUND
FORWARD THIS INFORMATION TO THE FBI.

[email protected]