On July 4th, 2004, Julia Davis noticed something wasn’t right at the Port of San Ysidro border crossing. A customs and border protection supervisor for the Department of Homeland Security, she had been told to look for signs that Al Qaeda might be trying to penetrate the border. Now, looking over paperwork from the night shift, she found 23 improperly documented border crossings from countries on the watch list. “They hadn’t even been fingerprinted,” she says. “It seemed highly suspicious to me.”
The San Ysidro border crossing is the busiest in the world, processing some 50 million people each year. Photo via U.S. Customs and Border Protection.
Following DHS procedure, Davis reported her finding to the port director. When he took no action that day, Davis—who was afraid an entire terrorist cell might have crossed the border to carry out an attack—decided to make a report to the FBI. That decision kicked off a chain of events that led to retaliatory legal battles, tax audits, a SWAT team searching her home, 54 investigations into her conduct and a threat to revoke her citizenship. Davis had exposed a DHS error, and she was being punished for it. “I’m not sure whether they will ever really stop,” she says. “I don’t feel safe.”
If this sounds extreme to you, you probably haven’t been paying attention. Recent high-profile cases have seen individuals like Edward Snowden and Bradley Manning exiled and imprisoned, respectively. Lower-profile cases like those found in The Whistleblower Directory show that it’s common to lose your job, be accused of fraud, and otherwise targeted for retaliation after exposing wrongdoing. There are stories—mostly from outside the United States—of whistleblowers being attacked, tortured, even killed.
These are the situations that ordinary people find themselves in when they expose wrongdoing by businesses, people and governments. The threat of retaliation is enough to deter many potential whistleblowers. But sometimes, a person decides that the information they hold is more important to society than their own safety.
If you decide to blow the whistle, there’s almost no way to avoid some form of fallout. But there are options for publicizing your information with less personal risk. By following some preliminary steps and making smart decisions about how you proceed, you may be able to keep your identity entirely confidential. It all comes down to the nature of your secret, and what you choose to do with it.
Snowden and Manning: Are They Whistleblowers or Leakers?
“Edward Snowden sacrificed his life to make sure the public knew what was going on,” says Julia Davis. By exposing details of the U.S. National Security Administration’s massive electronic surveillance operation, Snowden both opened up the issue for public discussion and effectively put an end to his personal life. Currently exiled from the United States and seeking asylum in Russia, Snowden will never return to life as he knew it before.
That’s partly because Edward Snowden committed a very serious crime by exposing information related to national security. Disclosing confidential information is a criminal act under United States law, and federal prosecutors have already charged Snowden with espionage and theft of government property. The U.S. government has revoked his passport.
“Using the term ‘whistleblower’ implies that they have the right to blow the whistle,” explains Ruben Guttman, a litigation attorney who has successfully represented whistleblowers for claims in the billions of dollars. “Snowden, Wikileaks, and Manning—these events have raised the question of who we call whistleblowers and why it makes a difference.”
It makes a difference because there is a system in place for whistleblowers, but not for leakers. The system is designed in theory not just to protect the individual, but to open up a clear and transparent discussion of the issue that involves regulatory agencies and lawmakers. Under this system, Edward Snowden would ideally have made a report to his supervisor, and then gone up the chain of command as far as Congress before seeking media attention.
In that system, taking the issue to the press is “a last resort”. A “leaker” skips several steps by going directly to the media. In disclosing something secret or confidential, he or she is subject to criminal prosecution for the act of leaking alone.
It’s an important distinction, and one that’s often overlooked. By going directly to the press, Edward Snowden became a leaker, not a whistleblower. Bradley Manning did the same in 2010, when he allegedly transferred huge amounts of classified data to Wikileaks. Both exposed secrets that the government considered important to national security.
They’re not the only national security leakers; Daniel Ellsberg, for example, leaked the Pentagon Papers to the New York Times during the Vietnam War. But in our media-driven, “Deep State” age, Snowden’s and Manning’s actions are important signs of the times.
To Leak or Not to Leak?
Back in 2004, Julia Davis’ FBI report was anonymously sent to the press without her knowledge. Soon, CNN started investigating. Lou Dobbs requested a television interview. “I refused,” she says.
“It was never my goal to embarrass the Department of Homeland Security publicly, and I wasn’t seeking my fifteen minutes of fame.
That’s the only thing I would have done differently.
Looking back, I would have gone public much sooner. That may have changed the course of events: knowing that it was public, that it was out there, they may not have landed a Black Hawk helicopter at my house.”
Is Edward Snowden a hero, or a traitor? “I don’t think the labels are accurate,” Davis says. “He is an intelligent individual, and he’s aware of other whistleblower cases…he saw that whistleblowers get prosecuted and berated, and in the end the press barely mentions the subject of their disclosure.”
Julia Davis in 2004.
“Snowden succeeded where most of us whistleblowers failed, and that is to get media exposure and public awareness as to what is going on. If he saw that the alternative was to do it ‘the right way’ and not get any public exposure for the problem that he believes exists, I think that’s what forced him to do it the way he did.”
Guttman disagrees. “Daniel Ellsberg exposed the Pentagon Papers because he was concerned about a risk of life,” he says. “He was worried about individuals who would have lost their lives in a war that was escalating.”
“The Snowden situation is more complicated. The NSA’s surveillance program is supposedly set up to protect safety.
The question of whether that program is moral or ethical or reasonable or constitutional, that’s a question of balancing necessary surveillance against the fundamental right of privacy. That balance is very delicate, and we don’t know enough of the facts to clearly assess it. That’s why we have a court system: to be able to look at these things clearly.
If Snowden went on trial, I suppose we’d know more about it and be able to formulate concrete opinions.”
Ultimately, the decision to become a leaker instead of a whistleblower seems to rest on two important elements: What you hope to accomplish, and whether protections are available. It seems clear that Snowden, Manning and Ellsberg all wanted their information to become public knowledge. And as it turns out, none of them were protected under United States law. Ellsberg, in 1972, was working well before the Whistleblower Protection Act of 1989 came into existence. But even the 2012 Whistleblower Protection Enhancement Act provides no protection for those working on matters of national security. In other words, Manning and Snowden were risking severe retaliation even by reporting issues within their chain of command. Seen in that light, it becomes clearer why they chose to leak the information instead of blowing the whistle.
How to Be a Whistleblower (or Leaker)
If you come across sensitive information, you’ll have a series of difficult choices to make. Here’s a guide that can help you through some of the most important steps.
1. Verify and Document.
“Make sure it’s not just a rumor,” Davis explains. “If it’s not classified information, keep a copy for yourself and give a copy to a friend in a sealed envelope.” The extra copy is your backup, in case you lose your original; your friend can later testify that you handed it to them on a specific date, if necessary. In the end, this may help you prove your case’s validity.
2. See a Lawyer.
“We get about a thousand inquiries every year,” Guttman says. “Only a handful of those are cases where somebody can take action.”
“I look at it from the perspective of putting a case together that will go before a jury. Where the average person might see a document that they think is a smoking gun, a lawyer can evaluate whether it’s admissible, whether it’s part of a pattern, what the context is. We can do a holistic evaluation of the situation.
To bring a charge against anybody involving impropriety, that’s something that shouldn’t be taken lightly.”
Think you can’t afford a lawyer? Find one that works pro bono. Figure out what the legal channels are. If you can go through the steps, you have more opportunity to protect yourself.
3. Decide if you really want to go forward.
Sometimes, after talking to a lawyer, you’ll find out that the issue is being addressed. You might also decide that you’re not the right person to take action.
When Julia Davis made her report, she didn’t even realize that would make her a whistleblower. “I thought I was just doing what any American citizen would do,” she says. “From that point on, my life was never the same.” Once you have exposed someone’s secret, you can expect your life to change significantly.
If you don’t want to go public, there are other options. “You can make a report to the police, to the Federal Bureau of Investigation, to the Securities and Exchanges Commission,” Guttman explains. In many cases, you can state that you want your identity to be kept confidential, and the agency in question will comply.
4. Prepare for the worst, hope for the best.
If the entity you’re accusing of impropriety discovers your identity—or if you wind up in court—there are likely to be attacks on your integrity. A common retaliatory tactic is for the other party to launch an investigation or lawsuit against you, in an attempt to discredit you. It’s also common to lose your job, and it can take years to fight court cases.
“Have enough money saved up so you can get an attorney, so you can assert your rights,” Davis says. Make a plan for what you will do in the case of character or legal attacks.
On the other hand, the SEC will not only pay a bounty for usable information on corporate wrongdoing, but to date has protected the identities of its whistleblowers. Depending on the information you have and who you’re sharing it with, you could come out ahead.
5. Do everything right.
Don’t cut corners, stretch information or make false claims. You should expect to have everything investigated, from the method you used to report the information, down to how many parking tickets you have.
Whenever possible, follow the legal steps to disclosing the information. In the meantime, be a model citizen. The closer you follow the letter of the law, the safer you will be.
6. Decide: whistleblower or leaker?
Unless you are the next Edward Snowden, you probably have better options than tipping off a reporter. If you work for the government, file your claim according to whistleblowing procedures. If you’re in the private sector, get a lawyer’s advice.
“If you go to press, the law in most cases won’t protect you,” Guttman explains. “If you go to court, then the press has access to the issue and an ability to get it out there. I’m not saying don’t go to the press, I’m saying go through the steps.”
Ultimately, this choice is up to you. You are still taking a risk. But following the steps first can help you maintain your reputation and keep your conscience clear.
7. Seek support.
The National Whistleblowers Center is a non-partisan group dedicated to the protection and education of whistleblowers. In fact, their stance includes whistleblowers like Julia Davis as well as leakers like Edward Snowden. The NWC has repeatedly pointed out the shortcomings of the Whistleblower Protection Acts, and released a statement that, until Congress enacts a law that includes “reasonable procedures” for civil servants to blow the whistle on matters of national security, “the government should not prosecute these whistleblowers.”
The American Civil Liberties Union is another key resource, working to protect the rights and liberties afforded to United States citizens under the law. Depending on your case, the ACLU may or may not be able to help.
Contact both of these organizations before taking your action. Download The Whistleblowers Handbook, and seek out advice from members of The Whistleblower Directory. With the support and experience of the whistleblower community behind you, you may still have difficult choices to make—but you don’t need to make them alone.