The Ethics of Whistleblowing

Eric R. Boot

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9780429798689
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

Following the enormous political, legal, and media interest that has surrounded high profile cases of whistleblowing, such as Chelsea Manning and Edward Snowden, the fundamental ethical questions surrounding whistleblowing have often been obscured. In this fascinating book Eric Boot examines the ethical issues at stake in whistleblowing.

Can the disclosure of classified government documents ever be justified? If so, how? Why does it require justification in the first place? Can there ever be a duty to blow the whistle? When is breaking the law justified?

On a more practical level, this book also considers the various whistleblower protection documents and finds them often lacking in consistency and clarity, before providing an argument for a plausible "public interest" defense for whistleblowers.

1 Introduction

Let us start with a case most readers will likely be familiar with: Edward Snowden’s disclosures regarding the National Security Agency’s (NSA) mass surveillance programs. Briefly discussing this case will allow me to introduce the general theme of this book, present some of its main questions, and clarify what the unique focus of the present work on whistleblowing is. Snowden downloaded and then passed on to journalists for The Guardian and The Washington Post (the former of which later enlisted the help of journalists for ProPublica and The New York Times) approximately 1.7 million U.S. government classified documents. ¹ Among other things, these documents showed that Americans’ phone and internet records were being monitored on a truly massive scale. ² Hailed by some as a hero and reviled by others as a traitor, Snowden took it upon himself to disclose these documents to the public (via the above-mentioned journalistic outlets and after executing the necessary redactions). On the one hand, his revelations led to a U.S. District Court Judge finding the NSA’s data collection program to be unconstitutional for violating the Fourth Amendment. ³ Similarly, a federal appellate court ruled that the NSA’s bulk collection of communications records was illegal. ⁴ Furthermore, following Snowden’s revelations, Congress passed the USA Freedom Act, which introduced vital reforms to the NSA’s bulk data collection program. Shortly after Snowden’s disclosures, moreover, the UN General Assembly declared online privacy to be a fundamental human right. ⁵ Finally, his disclosures sparked a great public debate worldwide concerning the fundamental values of privacy, security, and transparency. These facts seem to indicate that Snowden’s disclosures did indeed reveal grave government wrongdoing and, therefore, truly served the “public interest” (a term to be further defined in Chapter 3).

On the other hand, some have pointed out that Snowden’s disclosures have hampered the functioning of certain NSA programs that have actually played a role in preventing terrorist attacks. The President’s Review Group on Intelligence and Communications Technologies concluded, for example, that Section 702 of the Foreign Intelligence Surveillance Act – allowing the U.S. intelligence community to target the communications of non-U.S. persons residing outside the United States for foreign intelligence purposes – has played a role in gathering the intelligence that led to over 50 counterterrorism investigations. The President’s Review Group is convinced that Section 702 does in fact “play an important role in the nation’s effort to prevent terrorist attacks across the globe.” ⁶ Exposure of this program as a consequence of Snowden’s disclosures may thus have inhibited its functioning. ⁷ Still, it remains an open question whether the success that (some of) the NSA’s surveillance programs have had outweighs the costs to privacy.

Others have criticized Snowden for the unilateral manner in which he acted. As Seana Shiffrin put it, his disclosures did not merely amount to a political critique of the NSA’s surveillance programs but were instead “political speech acts.” ⁸ In other words, his disclosures did not merely constitute a criticism of particular policies, but rather they amounted to a unilateral political decision. Unauthorized disclosures such as Snowden’s immediately, performatively as it were, undo the decision (made by democratically elected officials) to keep a certain piece of information secret. But who is this Booz Allen Hamilton contractor to decide for millions of Americans what ought to be public and what may remain secret? Is that not the task of our representatives in government?

This very brief discussion of the Snowden case shows us that it is by no means a straightforward matter to judge such cases and that, therefore, as I will argue in a moment, sustained philosophical reflection is required. Snowden’s case is also a clear example of the type of whistleblowing that will be the focus of this book, which I will refer to as classified public whistleblowing: “classified” in the sense that state secrets are involved; “public” in the sense that the information is disclosed to the public (typically via the media), as opposed to an internal or external supervisory body. The reason for focusing on disclosures to the public is that they are, comparatively speaking, far more complex and difficult to judge (i.e., whether a particular unauthorized disclosure is justified) than the addressing of wrongdoing through the appropriate channels. ⁹ Indeed, often the stated goal of whistleblower protection legislation is to render the more problematic case of unauthorized disclosures unnecessary by providing for safe and legal options for addressing wrongdoing either internally or (if that fails or is expected to be fruitless) externally through the appropriate supervisory bodies. ¹⁰ When such legislation is in place and functioning properly, whistleblowing is a perfectly legal action that is morally fairly unproblematic. ¹¹ Classified public whistleblowing, however, is an entirely different story. Because it typically involves breaking the law and the violation of a number of other obligations (promissory obligations, for example), it raises a whole different set of moral questions, which make it more akin to civil disobedience than to the legal forms of addressing wrongdoing (though it also differs from civil disobedience in significant ways, as we shall see in Chapter 4). Furthermore, the reason I focus on the disclosure of state (rather than corporate) secrets is that such disclosures in particular stand to benefit from the political philosophical treatment this book offers. Of course, I am aware that the public and the corporate do not always neatly come apart. Snowden himself, for example, was not a civil servant, but rather an employee of Booz Allen Hamilton. He worked as a subcontractor for the National Security Agency but was still employed by a private company. Nonetheless, however, Snowden’s is a case of classified public whistleblowing as the secrets he disclosed were state secrets.

One final clarification of the scope of this book concerns the types of societies to which our examination of unauthorized disclosures is limited. This inquiry into whistleblowing only applies to what John Rawls referred to as “nearly just” states. What he meant was states with a democratic government and a constitutional regime that more or less satisfies the two principles of justice, ¹² but in which nonetheless grave instances of injustice do occur. It is a state, furthermore, characterized by widespread support for its institutions (though of course citizens may not be in favor of the current government) and a publicly recognized conception of justice. ¹³ It is a state, in short, much like most Western liberal democratic states today. The reason for this focus is that several of the arguments offered in this book would need to be altered significantly in nonideal circumstances. For example, the argument for an obligation to blow the whistle, developed in Chapter 6, would need to be altered for a nonideal state. In such a state, the act of whistleblowing may actually put oneself and one’s loved ones in physical danger, rendering such an obligation far too demanding. For this reason, the arguments applied in this work apply only to nearly just (or nearly ideal) states.

One can approach such whistleblowing ¹⁴ from sundry perspectives: many have approached disclosures such as Snowden’s from a legal perspective, ¹⁵ inquiring into the (il)legality or the (un)constitutionality of particular disclosures, comparing existing whistleblower protection legislation in different countries, considering the flaws in existing secrecy laws and classification procedures, and at times proposing reforms to existing laws and policies. Advocacy groups, such as Transparency International, Open Society Foundations, and PEN American Center, survey the legal landscape as well but often add a sociological component (e.g., How do whistleblowers fare in different countries? How are they viewed in various countries?) and of course an advocacy component, typically calling for greater transparency in government, a human right to know, and stronger and more reliable whistleblower protection laws.

Instead, the present work, though it is certainly informed by the work done by both legal scholars and advocacy groups, has a different approach to the question of whistleblowing; the questions it raises are chiefly moral in nature, such as: “What conditions need to be met for whistleblowing to be morally justified?”; “Why does whistleblowing require moral justification to begin with? Is it somehow morally wrongful?”; “Can there be a (legal and/or moral) right to whistleblowing?”; “Can one ever have a moral obligation to blow the whistle?”; “How do we deal with conflicting obligations (e.g., to prevent or end grave government wrongdoing by speaking out versus our promissory, role, and legal obligations to refrain from whistleblowing)?” Though this book will chiefly engage with these and similar questions, it will also relate the insights resulting from this moral inquiry to the legal reality concerning whistleblowers, at times even providing concrete suggestions for improvement.

A brief survey of existing laws, policies, and guidance documents concerning whistleblowing will quickly clarify why sustained philosophical analysis is urgently needed. As said, this work will be concerned not with internal whistleblowing or with addressing wrongdoing externally through the appropriate supervisory bodies, but rather with unauthorized disclosures of state secrets to the media. These difficult cases are often unsatisfactorily discussed in legal texts and policy documents. The Council of Europe’s 2014 recommendation Protection of Whistleblowers, for example, simply states that a “special scheme or rules, including modified rights and obligations, may apply to information relating to national security, defence, intelligence, public order or international relations of the State.” ¹⁶ The 2009 Dutch law concerning the addressing of wrongdoing by civil servants (including those in the intelligence community) did not even mention the option of public disclosure via the media. ¹⁷ The 2016 general Dutch whistleblower protection law states that whether disclosures to the media are to be protected will need to be decided on a case-by-case basis with the help of the case law of the European Court of Human Rights (ECtHR) and the above-cited recommendation of the Council of Europe. ¹⁸ The latter is of little help as it merely states that disclosures to the media ought to be protected “when necessary.” ¹⁹ When such protection is necessary, however, is not clarified. As for the ECtHR’s case law, it is (1) not always clear and (2) not always consistent on this point. Regarding the lack of clarity, in Guja v. Moldova, for example, the Court argues that unauthorized disclosures of secret government information should be protected, if they demonstrate “wrongdoing of public interest.” ²⁰ What exactly is to be understood by “wrongdoing of public interest” and why it justifies whistleblowing is not made clear however. Which disclosures serve the public interest, and which do not, thus remains an open question, the resolution of which largely depends on the judge(s) in question. The second problem – the Court’s lack of consistency – becomes evident from the followi...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Contents
• Acknowledgements
• 1 Introduction
• 2 A pro tanto wrong
• 3 The public interest and the justification of whistleblowing
• 4 Possible legal defenses for justified whistleblowing (1): A right to whistleblowing?
• 5 Possible legal defenses for justified whistleblowing (2): A public interest defense
• 6 Obligatory whistleblowing
• Index