Intellectual Property and the Internet/Whistleblowing
A whistleblower (whistle-blower or whistle blower) is a person who tells the public or someone in authority about alleged dishonest or illegal activities (misconduct) occurring in a government department, a public or private organization, or a company. The alleged misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations, and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues).
One of the first laws that protected whistleblowers was the 1863 United States False Claims Act (revised in 1986), which tried to combat fraud by suppliers of the United States government during the Civil War. The act encourages whistleblowers by promising them a percentage of the money recovered or damages won by the government and protects them from wrongful dismissal.
Whistleblowers frequently face reprisal, sometimes at the hands of the organization or group which they have accused, sometimes from related organizations, and sometimes under law.
Origin of term
Most whistleblowers are internal whistleblowers, who report misconduct on a fellow employee or superior within their company. One of the most interesting questions with respect to internal whistleblowers is why and under what circumstances people will either act on the spot to stop illegal and otherwise unacceptable behavior or report it. There is some reason 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 individuals, including an option that offers near absolute confidentiality.
External whistleblowers, however, report misconduct on 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.
Under most US federal whistleblower statutes, in order to be considered a whistleblower, the federal employee must have reason to believe his or her employer has violated some law, rule or regulation; testify or commence a legal proceeding on the legally protected matter; or refuse to violate the law.
In cases where whistleblowing on a specified topic is protected by statute, US courts have generally held that such whistleblowers are protected from retaliation. However, a closely divided US Supreme Court decision, Garcetti v. Ceballos (2006) held that the First Amendment free speech guarantees for government employees do not protect disclosures made within the scope of the employees' duties.
Ideas about whistleblowing vary widely. Whistleblowers are commonly seen as selfless martyrs for public interest and organizational accountability; others view them as "tattle tales" or "snitches," solely pursuing personal glory and fame. Some academics (such as Thomas Alured Faunce) feel that whistleblowers should at least be entitled to a rebuttable presumption that they are attempting to apply ethical principles in the face of obstacles and that whistleblowing would be more respected in governance systems if it had a firmer academic basis in virtue ethics.
It is probable that many people do not even consider blowing the whistle, not only because of fear of retaliation, but also because of fear of losing their relationships at work and outside work.
Because the majority of cases are very low-profile and receive little or no media attention and because whistleblowers who do report significant misconduct are usually put in some form of danger or persecution, the idea of seeking fame and glory may be less commonly believed.
Persecution of whistleblowers has become a serious issue in many parts of the world. Although whistleblowers are often protected under law from employer retaliation, there have been many cases where punishment for whistleblowing has occurred, such as termination, suspension, demotion, wage garnishment, and/or harsh mistreatment by other employees. For example, in the United States, most whistleblower protection laws provide for limited "make whole" remedies or damages for employment losses if whistleblower retaliation is proven. However, many whistleblowers report there exists a widespread "shoot the messenger" mentality by corporations or government agencies accused of misconduct and in some cases whistleblowers have been subjected to criminal prosecution in reprisal for reporting wrongdoing.
As a reaction to this many private organizations have formed whistleblower legal defense funds or support groups to assist whistleblowers; two such examples are the National Whistleblowers Center in the United States and Public Concern at Work in the UK. Depending on the circumstances, it is not uncommon for whistleblowers to be ostracized by their co-workers, discriminated against by future potential employers, or even fired from their organization. This campaign directed at whistleblowers with the goal of eliminating them from the organization is referred to as mobbing. It is an extreme form of workplace bullying wherein the group is set against the targeted individual.
Legal protection for whistleblowing varies from country to country and may depend on any of the country of the original activity, where and how secrets were revealed, and how they eventually became published or publicized. For purposes of the English Wikipedia, this section emphasizes the English-speaking world and covers other regimes only insofar as they represent exceptionally greater or lesser protections.
Whistleblowing is complex patchwork of contradictory laws within the US.
In the United States, legal protections vary according to the subject matter of the whistleblowing, and sometimes the state in which the case arises. In passing the 2002 Sarbanes–Oxley Act, the Senate Judiciary Committee found that whistleblower protections were dependent on the "patchwork and vagaries" of varying state statutes. Still, a wide variety of federal and state laws protect employees who call attention to violations, help with enforcement proceedings, or refuse to obey unlawful directions.
The first US law adopted specifically to protect whistleblowers was the 1863 United States False Claims Act (revised in 1986), which tried to combat fraud by suppliers of the United States government during the Civil War. The act encourages whistleblowers by promising them a percentage of the money recovered or damages won by the government and protects them from wrongful dismissal.
Another US law that specifically protects whistleblowers is the Lloyd – La Follette Act of 1912. It guaranteed the right of federal employees to furnish information to the United States Congress. The first US environmental law to include an employee protection was the Clean Water Act of 1972. Similar protections were included in subsequent federal environmental laws, including the Safe Drinking Water Act (1974), Resource Conservation and Recovery Act (1976), Toxic Substances Control Act of 1976, Energy Reorganization Act of 1974 (through 1978 amendment to protect nuclear whistleblowers), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or the Superfund Law) (1980), and the Clean Air Act (1990). Similar employee protections enforced through OSHA are included in the Surface Transportation Assistance Act (1982) to protect truck drivers, the Pipeline Safety Improvement Act (PSIA) of 2002, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR 21"), and the Sarbanes–Oxley Act, enacted on July 30, 2002 (for corporate fraud whistleblowers).
Investigation of retaliation against whistleblowers under 20 federal statutes falls under the jurisdiction of the Office of the 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 Office of the Whistleblower Protection Program (OWPP).
The patchwork of laws means that victims of retaliation need to be alert to the laws at issue to determine the deadlines and means for making proper complaints. Some deadlines are as short as 10 days (for Arizona State Employees to file a "Prohibited Personnel Practice" Complaint before the Arizona State Personnel Board; and Ohio public employees to file appeals with the State Personnel Board of Review). It is 30 days for environmental whistleblowers to make a written complaint to the Occupational Safety and Health Administration (OSHA). Federal employees complaining of discrimination, retaliation or other violations of the civil rights laws have 45 days to make a written complaint to their agency's equal employment opportunity (EEO) officer. Airline workers and corporate fraud whistleblowers have 90 days to make their complaint to OSHA. Nuclear whistleblowers and truck drivers have 180 days to make complaints to OSHA. Victims of retaliation against union organizing and other concerted activities to improve working conditions have six months to make complaints to the National Labor Relations Board (NLRB). Private sector employees have either 180 or 300 days to make complaints to the federal Equal Employment Opportunity Commission (depending on whether their state has a "deferral" agency) for discrimination claims on the basis of race, gender, age, national origin or religion. Those who face retaliation for seeking minimum wages or overtime have either two or three years to file a civil lawsuit, depending on whether the court finds the violation was "willful."
Those who report a false claim against the federal government, and suffer adverse employment actions as a result, may have up to six years (depending on state law) to file a civil suit for remedies under the US False Claims Act (FCA). Under a qui tam provision, the "original source" for the report may be entitled to a percentage of what the government recovers from the offenders. However, the "original source" must also be the first to file a federal civil complaint for recovery of the federal funds fraudulently obtained, and must avoid publicizing the claim of fraud until the US Justice Department decides whether to prosecute the claim itself. Such qui tam lawsuits must be filed under seal, using special procedures to keep the claim from becoming public until the federal government makes its decision on direct prosecution.
Federal employees could benefit from the Whistleblower Protection Act, and the No-FEAR Act (which made individual agencies directly responsible for the economic sanctions of unlawful retaliation). Federal protections are enhanced in those few cases where the Office of Special Counsel will uphold the whistleblower's case.
Securities whistleblowers are provided incentives and protection by the Dodd–Frank Wall Street Reform and Consumer Protection Act (2010). The Dodd-Frank Act offers whistleblowers significant incentives and increases protection for whistleblowers in the SEC whistleblower program. This legislation authorizes the SEC to reward those who provide information concerning violations of the federal securities laws at companies that are required to report to the SEC.
Further, the Dodd-Frank Act strengthens the whistleblower protection provisions of the False Claims Act, and contains one of the strongest confidentiality provisions for whistleblowers ever enacted. For the first time, whistleblowers will be allowed to initially report fraud anonymously by filing a claim through an attorney.
Additionally, the law prohibits employers from retaliating against whistleblowers. Employers may not fire, demote, suspend, threaten, harass, or discriminate against a whistleblower. The Dodd-Frank Act expands the reach of whistleblower protections provided under the Sarbanes-Oxley Act of 2002 to include employees of public companies as well as employees of its private subsidiaries and affiliates. Whistleblowers who suffer from employment retaliation may sue for reinstatement, back pay, and any other damages incurred.
The Military Whistleblower Protection Act protects the right of members of the armed services to communicate with any member of Congress (even if copies of the communication are sent to others).
In the United Kingdom, the Public Interest Disclosure Act 1998 provides a framework of legal protection for individuals who disclose information so as to expose malpractice and matters of similar concern. In the vernacular, it protects whistleblowers from victimization and dismissal.
The former NSW Police Commissioner Tony Lauer summed it up as "Nobody in Australia much likes whistleblowers, particularly in an organisation like the police or the government."
Canadian protection for whistleblowers is notoriously poor by English-speaking countries' standards. Until recently, there was no formal protection for those who spoke up from a position of knowledge inside government, with even senior civil servants (Shiv Chopra being one notable case) fired or constructively dismissed for speaking up about internal abuses.
In the private sector, the situation was even worse as Canada retained the unreformed common law of libel without the exceptions for public issues or public interest that were added in all other English-speaking countries. This made political libel cases unfortunately common, with one infamous case even filed by the Prime Minister himself versus Official Opposition for alleging that the Prime Minister, when in Opposition, had bribed MP Chuck Cadman.
Historically, many Canadian private sector business scandals had come to light only through the intervention of the US SEC or other regulators (Garth Drabinsky, Conrad Black, Steven Bingham being three notable examples), due in part to the lack of whistleblower protections, plaintiff-friendly libel laws and a lack of investigative journalism due to these.
Canada's parliament has instituted the Public Sector Integrity Office (Canada), a parliamentary office for the protection for whistleblowers who speak up against abuses in government. However, that office was itself cast into some doubt when the first Integrity Commissioner, Christiane Ouimet, was heavily criticized in the auditor general's report in December 2010. Cabinet minister Stockwell Day defended the office but independent groups urged the re-opening of already closed files.
As of 2009 the government of India has introduced the whistle blower law "Right to Information Act." To maintain and increase the stability in law, the government of India is on the path to introduce an ombudsman law which is being deliberated in the parliament.
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Ceballos case and the Whistleblower Protection Act of 2007
The US Supreme Court dealt what many considered a major blow to government whistleblowers when, in the case of Garcetti v. Ceballos, 04-5, 547 US 410, it ruled that government employees did not have protection from retaliation in performance evaluations by their employers under the First Amendment of the Constitution if the alleged speech was produced as part of his/her duties. Ceballos did not dispute that his memo was made as part of his official duties. Whistleblowers who want to pursue a federal case under the First Amendment must now always claim the memos and writings made are part not only of the official duty but of a citizen's opinion and discourse of public relevance. This can be done by alleging that the cause for retaliation is not the text of the memo but the ideas surrounding it. In the case of Ceballos he could have argued that his protected speech was his concept of strict adherence to the rule of law.
The free speech protections of the First Amendment have long been used to shield whistleblowers from retaliation by whistleblower attorneys. In response to the Supreme Court decision, the House of Representatives passed H.R. 985, the Whistleblower Protection Act of 2007. President George W. Bush, citing national security concerns, promised to veto the bill should it be enacted into law by Congress. The Senate's version of the Whistleblower Protection Act (S. 274), which has significant bipartisan support, was approved by the Senate Committee on Homeland Security and Governmental Affairs on June 13, 2007. However, it has yet to reach a vote by Senate as a hold has been placed on the bill by Senator Tom Coburn (R-OK). According to the National Whistleblower Center, Coburn's hold on S. 274 has been done to further President Bush's agenda.
In December 2010 the Senate passed enhanced protections for government employees and contractors who report cases of waste, fraud and abuse.
California False Claims Act
The California False Claims Act protects whistleblowers from retaliation from their employer under a section entitled: "Section 12653. Employer interference with employee disclosures." Under this section, employers may not make rules that prevent an employee from disclosing information to the government in furtherance of a false claims action, an employer may not discharge, demote, suspend, threaten, harass, deny promotion to, or in any other manner discriminate against, an employee in the terms and conditions of employment because he or she has disclosed information to the government.
Conscientious Employee Protection Act (CEPA)
CEPA, New Jersey's whistleblower law, prohibits an employer from taking any retaliatory action against an employee because the employee does any of the following:
- Discloses, or threatens to disclose, to a supervisor or to a public body an activity, policy, or practice of the employer or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation issued under the law, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care;
- Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation issued under the law by the employer or another employer, with whom there is a business relationship, or, in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into quality of patient care; or
- Objects to, or refuses to participate in, any activity, policy or practice which the employee reasonably believes: is in violation of a law, or a rule or regulation issued under the law, or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care; is fraudulent or criminal; or is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
"Concerning protection for health care workers who report patient safety information" in Colorado
"Patient safety is of paramount importance in the delivery of health care to Colorado citizens. A patient is at his or her safest when a health care worker has the right to speak out on the patient's behalf without fear of reprisal or retaliation. Health care providers recognize that, in order to deliver the highest quality health care, it is imperative that all health care workers have the right to report patient safety concerns and to advocate for a patient's well being without the risk of disciplinary action or loss of employment."
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