Technology changes landscape for would-be whistleblowers

Friday, March 16, 2012

WASHINGTON — In a wide-ranging discussion about whistleblowing today at the Newseum, one reporter shared advice with potential leakers, saying that if he were a government employee with information to share, “I’d never talk on the phone or through e-mail” with the news media.

Tom Bowman, National Public Radio national desk reporter, was one of several panelists who spoke on a panel sponsored by at the 14th annual National Freedom of Information Day conference.

Tom Bowman at National FOI Day 2012

NPR's Tom Bowman. Photo by Maria Bryk

Moderator Abbe Lowell asked Matthew Miller why there are so many prosecutions of leakers during the Obama administration, with its purported goal of greater government transparency.

There’s a perception in Washington that much more leaking is going on now than during previous administrations, said Miller, a partner with Vianovo and former director of the Office of Public Affairs for the Department of Justice. But, he said, it may be that it’s just “easier to catch leakers” now because of the advances in surveillance and the use of electronic records.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said that if she were a government whistleblower 10 or 15 years ago, “I would have gone to the media. Not anymore.”

One reason, she said, is that for reporters, “you can’t protect your source” if you’re leaving an electronic communication trail. To which Bowman responded, “Some of us still do meet (our sources) in bars and restaurants.”

Dalglish said advances in technology and surveillance may have unexpected implications for the news media, as well. She said a government official told her that because of advances in technology and surveillance, “the subpoena in the (James) Risen case will be the last one you’ll see. We don’t need you (in the media) anymore” or the hassle of attorneys in order to pursue leakers.

With technological advances, people can now post information directly to Wikileaks and other do-it-youself leak sites. Miller said people have less protection when they post their own leaks. He noted that when whistleblowers give information to news outlets, the outlets can withhold or delay information, and “can be more responsible with the information” than can Wikileaks.

Legislation meant to encourage whistleblowing in the financial sector — giving whistleblowers a percentage of damage awards levied against companies — hasn’t had its intended effect, said Gary J. Aguirre, a former investigator for the Securities and Exchange Commission and a whistleblower himself. Since the Dodd-Frank measure was enacted, Aguirre said, there hasn’t been a single SEC award in whistleblower cases. “There was supposed to be an explosion, and you can barely hear a bang.”

Aguirre said it was “career suicide” for a whistleblower inside a financial corporation to communicate with the SEC because “the cases are outsourced back to the private firms (whose attorneys) then don’t find any violations.”

“Dodd-Frank whistleblowing is a dead issue,” he said.

Lowell mentioned several stories in the news in the last week, including another court appearance for Bradley Manning, the suspected leaker in the Wikileaks case, and a New York Times op-ed article by Greg Smith on Goldman-Sachs. Lowell asked whether there had been an uptick in whistleblowing.

“Is this a continuation of a trend? Is it the good old days? The bad old days? Orwellian?” asked Lowell, an attorney with  Chadbourne and Parke LLC.

Dalglish said that after the Wikileaks case, there seemed to be “no judgment call on how bad was the release” of information in cases that the government labeled as involving national-security issues. The government’s attitude, she said, has been to try to track and punish any such disclosures., a coalition of 80 about organizations that promote openness in government, and the issues surrounding FOIA, whistleblower and national security issues, sponsored the afternoon sessions at the Newseum.

The conference was hosted by the First Amendment Center and conducted in partnership with the American Library Association, the Reporters Committee for Freedom of the Press, OMB Watch and the National Security Archive at George Washington University.

The event also is part of the annual Sunshine Week initiative sponsored by the American Society of News Editors and the Reporters Committee.

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