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BK Blog Post
Posted by Tom Devine.
Tom Devine is legal director of the Government Accountability Project, where he has worked to assist thousands of whistleblowers to come forward and has been involved in the all of the campaigns to pass or defend major whistleblower laws over the last two decades.
Alison Glick is GAP’s International Program Officer and WIN liaison
It shouldn’t be a crime to report a crime, but increasingly it is.
From the land Down Under to the U.S. hinterland, whistleblowers are being threatened with prosecution for exposing abuses in both the public and private sectors – a phenomenon that bodes ill for holding authorities accountable and for protecting basic rights to free speech and information.
The push to criminalize employees and interested citizens documenting and reporting abuses, illegality, and threats to public safety continues to gain momentum, as do efforts to resist the crackdown. It seems that the mantra “If you see something, say something” applies only in certain situations, and most assuredly not in ones that embarrass governments or narrow their corporate benefactors’ profit margins.
The latest example of this is Australia’s Border Force Act, which provides for penalties of up to two years in prison for any employee or contractor of the Department of Immigration and Border Protection who discloses information to any entity outside of the Department or other government bodies. This restriction comes in the wake of reports of appalling living conditions and child abuse suffered by asylum seekers imprisoned in offshore immigrant detention centers on Naumu and Manus Island.
In the United States since 2010, over a dozen states have pushed for so-called “Ag Gag” laws that criminalize the documenting of abusive and dangerous practices by animal agribusiness that are not only cruel, but endanger public health and safety. They have been aided in their efforts by farming interests and lobbyists who have gone so far as writing the bill introduced by legislators, as in the case of Idaho. According to the Government Accountability Project’s Food Integrity Campaign (FIC), ag gag bills usually contain one or more of three provisions designed to suppress whistleblowing: 1) the ban of photography/video documentation on facility premises; 2) the criminalization of securing a job under “false pretenses”; and 3) mandatory reporting of documented abuse, but within an impossibly short and arbitrary timeframe.
While many of these state bills have been defeated, it’s instructive to look at how they and their Australian immigration counterparts are structured to discern what’s really at stake for the public interest and for the whistleblowers who try to protect it.
Several U.S. ag gag bills included mandatory reporting provisions, requiring whistleblowers to report animal abuse and turn over videotapes and other documentation within 24 hours or face prosecution. While on their face these provisions appear to support prosecution of abuse, in practice they actually hinder meaningful and effective investigations by mandating reporting before adequate documentation can occur. As FIC noted, “These provisions, which the sponsors claimed solve the problem of silencing so-called legitimate whistleblowers, actually make it easier for companies to isolate those who speak up and retaliate against them.” The Iowa legislation was written “so that workers face serious charges if they gain access ‘with the intent to commit an act not authorized by the owner,’ language that prevents even established, long-term employees from speaking up if they witness serious violations on company property.”
Similarly, the new Australian law requires workers to exhaust all internal complaint processes, which may not only delay disclosures and remedies for the abuses but are likely to have a chilling effect on whistleblowers who remain vulnerable to retaliation during such processes (just ask Anders Kompass, the UN OHCHR official who suffered retaliation after sending a report to French authorities on the rape of displaced street children in the Central African Republic by peacekeeping troops after UN officials sat on the report for more than a month as the abuse continued and the alleged perpetrators left the country). In addition, disclosure must be limited to the issue, which was the subject of the original internal complaint. As noted by The Guardian, “Too much disclosure is not protected, and there is little guidance about where the boundaries lie.”
So the tactic seems to be bureaucratizing the act of reporting a suspected abuse to the extent that whistleblowers are paralyzed by fear, uncertainty or by the process itself. In essence, they are silenced under an opaque cloud of rules, regulations and legalese, not to mention lessons learned by the treatment of other whistleblowers.
Despite the powerful forces and interests lined up in the “see something, say nothing” camp, many are refusing to remain silent. A group of over 40 healthcare and humanitarian workers serving the detention centers published an open letter to the Australian government on July 1, the day that the controversial law came into effect. In it they declared their open defiance of the law, challenging the government to arrest them.
One doctor explained his motives this way: “In a democratic society I have the right to speak out as an informed citizen if I feel that there are issues of public concern. To threaten me with two years in jail for doing so directly undermines this principle and undermines our democracy...We follow due processes and procedures but if these are inadequate then they [medical and social welfare professionals] have no other alternative than to raise issues in other, more public, forums. To threaten us with legal action for doing so will create a system where significant abuse will become a certainty…”
In the U.S. food safety and animal welfare whistleblowers continue to come forward, at great peril, to notify the public of abuses and threats to public health. And in Utah, activists filmed a hog facility on public property to document inhumane handling practices. They were arrested for trespassing and other charges under the state’s ag gag law. Notably, the ag gag charges were dropped, in part due to public pressure and the law’s unpopularity.
On the one hand, mass surveillance is being conducted on an unprecedented scale by governments who tell their citizens, “just trust us.” On the other hand, citizens face an uphill battle to obtain information from increasingly secretive governments – information that the public needs to be safe and healthy, and to know what is being done in our name. Thus the “right to information” principle, once the domain of democrats and rights activists working to build an informed public, has been turned on its head: The government and its corporate backers have the right to know everything about citizens, but citizens need not ask what governments and corporations know or do.
But judging from the action of people like those 40 detention center workers and the young Utah activists, not to mention whistleblowers like Anders Kompass and Edward Snowden, “if you see something, say something” still holds a valuable and respectable meaning for many people. We are grateful to all of them.