Arkansas Legislators Want To Make Corporate Whistleblowing Illegal

from the ag-gag-but-for-everybody dept

Another "ag gag" law is in the works in Arkansas. These bills are brought under the pretense of safety -- both for the person supposedly breaking them, as well as for the employees of the entity "trespassed" upon. The unspoken aim of these laws is to prevent whistleblowing, and they often spring into existence after someone has exposed horrible practices at local businesses -- in most cases, the mistreatment of animals. The other consequence of most of these laws -- unintended or not -- is to deter employees from speaking up about questionable business practices, as there often is no exception carved out for employees of the companies protected by these laws.

Kaleigh Rogers of Vice reports another ag gag bill has passed the Arkansas state House and is on its way to a Senate vote. And once again, the bill's wording would deter whistleblowing and make journalistic efforts a civil violation.

Arkansas senators are considering a bill that would allow private businesses to sue whistleblowers that expose abuse or wrongdoing. The bill has already passed the house, but not without receiving plenty of dissent from Republican lawmakers, free speech proponents, and animal rights groups.

The law would make it legal for businesses to sue anybody who goes onto a business's private property and, among other acts, "records images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer." This include undercover investigators, but also employees: unless an employee is just doing his or her job, any recordings or information that exposes wrongdoing could be grounds for a lawsuit.

In between all the wording [PDF] that would be expected in a normal trespassing law (unauthorized access, theft, damage to property) are clauses that make exposing wrongdoing grounds for a lawsuit. This section makes the law's deterrent to whistleblowing explicit.

Records images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer.

That's combined with an earlier phrase that applies the law to employees, not just muckraking interlopers.

An act that exceeds a person's authority to enter a nonpublic area of commercial property includes an employee who knowingly enters a nonpublic area of commercial property for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer and without authorization…

Excepted from the law are all sorts of government agencies, which are apparently welcome to damage places of employment at will. In addition to damages and fees assessed as the result of a civil action, the state has the option to hit violators (which includes anyone who "directs or assists" the whistleblower/journalist) with $5,000/per day in fines.

The representatives pushing this bill are pretending it's about safety.

Representative Aaron Pilkington (R), who voted in favor of the bill, said the language is intended to prevent people from trespassing and potentially putting themselves in danger.

"It's just about going into places you're not allowed to be in," Pilkington told me. "If you work in a daycare center and there are problems going on, you have every right to whistleblow on that. But if you hear there's a daycare three towns over where something's going on and you're sneaking in there with a video camera, that's not right."

That's a really weird -- and really dangerous -- assertion to make. Violations should be unseen and unheard, apparently… unless they happen to occur at your place of employment. And even then, the wording of the bill contradicts the protections Pilkington alludes to. The bill specifically forbids employees from entering areas not directly-related to their job description and making any sort of recording that "damages" their employer. Whistleblowing always results in some sort of "damage," even if that damage is purely reputational and can be repaired by swift corrective action.

The only reason to pass a bill like this (rather than use existing trespassing laws to punish unauthorized entry) is to deter reporting and whistleblowing. It serves no purpose otherwise. Supporters of the bill know this, though they'll never publicly acknowledge this fact. If it passes, it should expect an immediate constitutional challenge. The bill does too much damage to accountability and protected speech to survive a second read by the courts.

Filed Under: arkansas, corporate whistleblowing, journalism, leaks, whistleblowing

Former CIA Director Blame Millennials Lack Of Loyalty For All The Government Leaks

from the it's-everyone,-we-all-kinda-hate-the-government dept

If all else fails, blame the millennials.

[T]he former head of the CIA has a theory about a possible root cause of the leak: Millennials.

Michael V. Hayden, who was the CIA director until 2009, said that in order for the agency to engage in the digital espionage described by the documents, the agency must “recruit from a certain demographic” — in this case, younger hackers brought on to help with these efforts.

“I don’t mean to judge them at all, but this group of millennials and related groups simply have different understandings of the words loyalty, secrecy and transparency than certainly my generation did,” Hayden told the BBC in an interview this week. “And so we bring these folks into the agency, good Americans all, I can only assume, but again, culturally they have different instincts than the people who made the decision to hire them.”

That's Hayden's response to the CIA leak, which exposed the agency's exploits and device-targeting tactics. Hayden's saying people used to trust the government more. That's what this breaks down to, even if couched in Hayden's implicit demand youngsters remove themselves from his lawn, but leave any and all government documents behind.

"Transparency" should mean what it's always meant. But "transparency" is defined by government agencies and officials harboring zero desire to engage in it. We spent years listening to Obama pat himself on the back for increased government obfuscation and secrecy, something he referred to as the "most transparent administration." The word "transparency" is meaningless in the government's hands. That's why almost anything of significance is revealed by leakers/whistleblowers routing around the "official channels."

"Secrecy" means the same thing it always has as well. The government likes it. Citizens are not quite as enthralled with government secrecy, especially considering more and more of their lives are open books. An example: anyone shot by a police officer will have their criminal record immediately delivered to the press while EMTs are still checking for a pulse. Weeks or months will pass before law enforcement agencies release the name of the officer whose gun "discharged," much less their disciplinary record.

People of all ages are likely tiring of the government's insistence on keeping secrets, even as it engages in mass surveillance, reinterprets privacy-shielding laws on the fly, builds massive biometric databases, and declares the Constitution invalid within 100 miles of the border. It's not just millennials. It's everyone.

"Loyalty" still means the same thing, too. But the government's used to receiving it unconditionally. It has spent years abusing it and is finally seeing the consequences of its actions. Millennials may be the least willing to show loyalty to a government that has already mortgaged their future, but again, this crosses all ages. Loyalty isn't something the government can demand, not when it's done as much as it has to demonstrate why it's unworthy of it.

Undeniably, leaking is easier than ever, with multiple journalistic outlets offering multiple ways for the anonymous to dump their documents and grievances. Engaging in some sort of age discrimination at the federal level isn't going to stop the flow of leaks.

What's happening now is a severely-broken system reaching its apotheosis. With someone else in the Oval Office, we likely wouldn't be seeing nearly as many leaks. Almost as soon as the administration makes a claim (or a tweet), a leaked document or comment refutes it. Agencies are going rogue. Confidential conversations with administration officials are being discussed on social media by those involved in them.

Trump's tweets about subjects of investigations and national security-related matters show he cares just as little for secrecy or loyalty. His refusal to release information the public's been asking to see (tax returns, divestment plans, etc.) shows he cares little for transparency.

It also sets an example for others. The administration is seemingly moving from one disaster to the next without indicating it has a blueprint for the future. This helps generate even more leaks -- and not just because ill-advised moves tend to produce interesting documents and irate government employees. The leaks are continuous because no one's worried the administration will ever locate the sources. The constant flow sends a clear message: those leaking info and documents -- and there are a lot of them -- feel the President and his staff are too incompetent, or too easily-distracted, to track them down. The CIA may track down the source of the leaked documents, but it's heavily-invested in its own secrets, which has nothing to do with the hurricane of disruptive activity taking place in the White House. But those leaking info related to the current administration have little to fear.

The administration has managed to make enemies of several federal agencies. Federal agencies are amazing at stonewalling. The best. If the administration thinks it's going to get assistance rooting out leakers, it's in for yet another surprise. And the administration will continue to be unsurprisingly surprised by the resistance it faces when it shows up with guns loaded, looking for rogue messengers.

Filed Under: leaks, michael hayden, millenials, whistleblowing

Get Ready For 'Leak Investigations' In The Trump White House

from the thanks-obama dept

As we discussed over and over again during the past eight years, the Obama White House -- despite a first day pledge to be "the most transparent administration in history" -- was actually quite famous for its extreme secrecy, combined with a seriously paranoid view of anyone leaking anything unflattering to the White House. As we detailed, the Obama White House declared any unflattering leaks as "aiding the enemy." And, of course, the Obama administration went after more leakers/whistleblowers with Espionage Act claims than all other Presidents in history combined.

So, now, I guess we'll see what the Trump administration does about leaks. So far, in just the first few weeks of the Trump administration, the number of leaks out of the White House has been fairly astounding. There are leaks on just about everything, with some being just downright silly (and a few being literally unbelievable). In a larger report in Politico on how Trump is adjusting to the job of being President, there's a brief mention that he's getting increasingly frustrated by the leaks and is seeking to have them stop:

After Trump grew infuriated by disclosures of his confrontational phone calls with foreign leaders, an investigation was launched into the source of the leaks, according to one White House aide. National Security Council staffers have been instructed to cooperate with inquiries, including requests to inspect their electronic communications, said two sources familiar with the situation. It’s not clear whether the investigation is a formal proceeding, how far along it is or who is conducting it.

The administration is considering limiting the universe of aides with access to the calls or their transcripts, said one administration official, adding that the leaks — and Trump’s anger over them — had created a climate where people are “very careful who they talk to.”

And, now, in the wake of a variety of leaks that resulted in National Security Advisor Mike Flynn resigning, the President is trying to shift the story to being about leaks:

This is only marginally hilarious, coming from the same President who regularly praised Wikileaks during his campaign, and who almost certainly owes his presidencey, in part, to multiple damaging leaks on his opponent during the campaign. Sean Spicer doubled down on this angle in a press briefing today — after joking about how he needs to stop lecturing reporters on what stories to cover, he proceeded to lecture them about the idea that they should be focusing on the existence of White House leaks as the real story.

Of course, Washington DC is a town that thrives, and often seems to live off of, leaks from the government. I can imagine just how frustrating it must be to experience it first hand, but it sort of comes with the territory. It's also a very, very important way in which the public is able to hold the government accountable. Leaks reveal things that keep the government's worst impulses in check, which is why it's a form of whistleblowing.

That said, this seems like yet another reason to be annoyed with the Obama administration's vast, paranoid crackdown on leakers. It has set the blueprint for a Trump administration if it chooses to go down that same path. It remains to be seen if the Trump administration will pick up where Obama left off and go after leakers quite as aggressively as the last administration. But the quotes above (ironically... leaked from the White House) certainly indicate a plan to crack down on leakers, and to date, Trump has not shown that he's interested in moderation when it comes to hitting back at those who displease him. One can only hope that he doesn't decide to take the Obama blueprint and go even further in going after leakers and whistleblowers.

Filed Under: barack obama, donald trump, espionage act, journalism, leaks, michael flynn, whistleblowing

After Passing Worst Surveillance Law In A Democracy, UK Now Proposes Worst Anti-Whistleblowing Law

from the oh,-didn't-you-notice-you-had-been-consulted? dept

Last November, the UK government finally passed the Snooper's Charter, officially known as the Investigatory Powers Act. That was largely because everyone in the UK was too busy arguing over the Brexit mess to notice that Theresa May had finally achieved her goal, and pushed through what the Open Rights Group called "the most extreme surveillance law ever passed in a democracy." Now that May has provided the police with the ability to rummage through a year's worth of every Brit's browsing history without a warrant, and given permission for the intelligence agencies to break into any computer and demand backdoors to be installed for any software or online service used in the UK, it seems she has a new target: whistleblowers. The Guardian reports on big changes the authorities want to make to the laws protecting government secrets, doubtless with an eye to dissuading any future Snowden/Guardian-type partnerships in the UK:

The [UK] government's legal advisers have been accused of launching a "full-frontal attack" on whistleblowers over proposals to radically increase prison sentences for revealing state secrets and prosecute journalists.

...

Draft recommendations from the legal advisers say the maximum prison sentence for leakers should be raised, potentially from two to 14 years, and the definition of espionage should be expanded to include obtaining sensitive information, as well as passing it on.

Although its good news that several old Official Secrets Acts are to be updated for the digital age, a Guardian editorial notes that the new approach would be broader and harsher than existing laws:

Reporters, as well as the whistleblowers whose stories they tell, would be under threat of sentences of up to 14 years, regardless of the public interest and even if there were no likelihood of damage.

Following the firestorm that greeted the announcement of this criminalization of core journalistic activities, and the absence of any public interest defense, May's spokesperson rushed out a comment:

I've seen the way this has been reported and it is fundamentally wrong. It is not, never has been and never will be the policy of the government to restrict the freedom of investigative journalism or public whistleblowing.

However, that response does not deny that journalists would indeed run the risk of 14 years in prison for handling documents leaked by whistleblowers. Instead, it seems, we are supposed to accept that the UK government will do the "right thing" here, and not actually use the new powers against investigative journalism. Leaving aside the fact that just a couple of months ago it passed the Snooper's Charter despite warnings about its excessive measures, there's another very good reason not to trust the UK government here. The Law Commission, the official body which produced the proposals, says on its Web site the following about how it drew up its plans:

In making its proposals the Law Commission met extensively with and sought the views of government departments, lawyers, human rights NGOs and the media.

The Guardian contacted some of those the Law Commission claims to have met, and they spoke of the very limited nature of the discussions:

[The human rights organization] Liberty said that while a meeting was held, it was "not on the understanding that this was a consultation".

…

Cathy James, the chief executive of Public Concern at Work, was also surprised to see her the whistleblowing charity listed as being involved.

She said: "I didn’t actually know we were listed in the document as we have been working our way through it so it is a big surprise to me. I believe my colleague met with them initially but we were not consulted in the normal sense of the word consultation. That is not what happened."

And the Guardian itself, also allegedly one of those whose views were sought, wrote that it had held only one preliminary meeting with the government's legal advisers, and that it was not consulted before being listed in the report.

Had it been just one organization making these comments, you could put it down to a misunderstanding. But for several people to report independently that they had only the briefest of meetings with the Law Commission, and that they did not regard those in any way as "consultations", suggests a conscious and shabby attempt to sneak out extreme proposals while pretending that they were the result of broad-based and in-depth discussions.

It is hard not to see this as yet another law that the UK government is determined to push through regardless of what anyone thinks, just as it did with the Snooper's Charter. Let's hope that this time the public and politicians aren't too distracted by the Brexit omnishambles to fight and defeat these changes that threaten not just whistleblowers and investigative journalism, but potentially British democracy itself.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: leaks, surveillance, uk, whistleblowing

Almost Every Word Of John McCain's Response To Chelsea Manning's Sentence Commutation Is Flat Out Wrong

from the hypocrites-in-congress dept

It's hardly a surprise that a bunch of people who have been fed a load of bullshit about what Chelsea Manning did years ago are now quite angry over President Obama's decision to commute Manning's sentence. But I don't think any are quite as painstakingly wrong as Senator John McCain. Someone should call up the Guinness World Record folks, because the wrong-per-sentence ratio of McCain's angry statement might just set a new world record. Let's dig in.

President Obama’s commutation of Chelsea Manning’s sentence is a grave mistake that I fear will encourage further acts of espionage and undermine military discipline.

Wait. Really? Manning has been in prison for seven years, with a significant portion of that being held in solitary confinement, sometimes being made to strip naked before being able to sleep. This was called "cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture" by the United Nations. You would think, of all people, Senator John McCain, who similarly was held in solitary confinement and tortured for extended periods while being held captive for 5 and a half years in Vietnam, would recognize that "only" 7 years of such treatment wouldn't exactly encourage more of Manning's behavior.

To put it more directly: who, in their right mind, is going to leak a bunch of documents thinking "oh, perhaps after going through literal torture, character assassination and basically hell on earth, it'll be okay, because maybe some other President will commute my insane 35 year sentence to just 7 years? No one. The idea that this commutation is going to lead to further leaks is ridiculous. If anything will lead to further leaks it's Manning's courage in seeing something wrong in the system and actually doing something about it.

In fact, it was things like Manning's courage that helped inspire Ed Snowden and other whistleblowers to step up. They didn't do it on the idea that they might "only" suffer 7 years of torture.

Second, what Manning did was not "espionage" and for McCain to suggest it is, means McCain either has no idea what he's talking about, or is lying. Manning leaked diplomatic cables and related information exposing vast wrongdoing by the US, to Wikileaks, who partnered with a number of respected press outlets to reveal the wrongdoing. That's not espionage. That's classic whistleblowing. And, yes, in case you've forgotten, Manning's leaks revealed a hell of a lot of wrongdoing by the US government.

It also devalues the courage of real whistleblowers who have used proper channels to hold our government accountable.

Oh come on. We've highlighted repeatedly how the "proper channels" claim is a complete joke. The "proper channels" have a long history of retaliating against whistleblowers such that everyone now knows the best way to destroy your life is to use the proper channels.

It is a sad, yet perhaps fitting commentary on President Obama’s failed national security policies that he would commute the sentence of an individual that endangered the lives of American troops, diplomats, and intelligence sources by leaking hundreds of thousands of sensitive government documents to Wikileaks, a virulently anti-American organization that was a tool of Russia’s recent interference in our elections.

First of all, Manning did not endanger the lives of American troops, diplomats and intelligence sources. During Manning's sentencing hearing, following her conviction, the US military admitted no one died because of Manning's leaks. So why does this myth still persist? Mainly because it's politically convenient to lie and pretend that whistleblowing leaks must "cost lives."

Thousands of Americans have given their lives in Afghanistan and Iraq upholding their oaths and defending this nation. Chelsea Manning broke her oath and made it more likely that others would join the ranks of her fallen comrades. Her prison sentence may end in a few months’ time, but her dishonor will last forever.

This has been pointed out over and over again: the oath that people take is to defend the Constitution. And a big part of that is calling out unconstitutional behavior by "this nation." Which is exactly what Manning did. Manning clearly felt that part of defending our nation and upholding her oath was to reveal wrongdoing by the US government. Furthermore, once again, the US military itself admitted that Manning didn't cause anyone to die.

Finally, as Marcy Wheeler correctly points out, McCain isn't just completely wrong with most of his statement, he's a total hypocrite as well. After all, McCain has been one of the most vocal supporters of General David Petraeus, a man who was convicted of giving classified information (much more serious than anything leaked by Manning) to his mistress. When there was talk of demoting Petraeus for this fairly serious breach, McCain said he was going to launch a Congressional investigation. And, more recently, McCain had this to say about Petraeus:

People make mistakes in life, they pay a price and move on.

So, uh, yeah. Compare that to his statement about the commutation (not pardon) of Manning's sentence and explain how McCain is not an utter and total hypocrite. If commuting Manning's sentence after "just" 7 years of torture and inhuman treatment will incentivize more leaks, wouldn't that also mean that Petraeus getting basically no punishment at all for leaking much more serious material will lead to more leaks, since it seems top government and intelligence community officials are clearly being given the message: it's okay to give up the nation's biggest secrets if it means you get laid.

Filed Under: chelsea manning, commutation, espionage, harm, john mccain, oath, whistleblowing

Court Won't Grant Immunity To Officer Who Issued A 'Be On The Lookout' Order On Whistleblowing Cop

from the might-as-well-just-say-'shoot-on-sight' dept

While law enforcement barrels continue to spoil from the presence of "bad apples," one has to wonder: where are all the good cops? Chances are, they've been chased out of the force to make room for others with faultier moral compasses.

In its affirmation [PDF] of the lower court's decision to strip Major Tommy Wheeler of the Douglas County Sheriff's Department of immunity in relation to defamation claims (and deny his motion to dismiss on the rights violation claim), the Eleventh Circuit Court recaps the events that led to this lawsuit.

The be-on-the-lookout advisory (“BOLO”) to all law enforcement in Douglas County, Georgia, described its subject as a “loose cannon.” “Consider this man a danger to any [law-enforcement officer] in Douglas County and act accordingly,” the BOLO alarmingly warned and ominously instructed.

What had the subject of the BOLO done to trigger such a grave alert? Had he threatened law enforcement or the public? Had he broken any laws? Was he mentally unstable? Had he been acting at all suspiciously? No, no, no, and no. Instead, Plaintiff-Appellee Derrick Bailey, the subject of the BOLO, had wielded the mightiest weapon of them all: the pen.

An officer of the Douglasville Police Department, Bailey had filed a written complaint with his chief, reporting that other Douglasville officers and Douglas County Sheriff’s Office deputies had been racially profiling minority citizens and committing other constitutional violations.

Bailey’s revelations did not go over well in Douglas County’s law enforcement community. Indeed, several months later, Bailey found himself without a job.

Prior to Bailey calling out the Sheriff's department for alleged constitutional violations, he had been considered a valued member of the team. He brought with him 17 years of law enforcement experience when he was hired with the Douglas Police. Unfortunately for him, he also brought his conscience. He filed a written complaint with the department after witnessing his fellow officers in action. He also wasn't thrilled with their racist euphemisms.

Bailey also complained that law enforcement officers made racially offensive comments and jokes about minorities, describing black males as “black as shoe polish wearing all black” and remarking that the City of Douglasville’s (“City”) logo was a “lynching tree.” Finally, Bailey expressed concern that he would lose his job for “making the complaints and speaking out about racial profiling and other violations.”

Things swiftly turned worse for Bailey. After filing the complaint, he was instructed to rewrite the incident reports he had previously filed. When he informed his supervisors (who were now engaged in an investigation of him) that rewriting incident reports violated department policy, he was suspended for "conduct unbecoming an officer." Eight days later, he was fired.

He appealed his termination, but that only led to more abusive behavior.

The City held a hearing on Bailey’s appeal on February 8, 2013. That very night, two deputies in a Sheriff’s Office vehicle followed Bailey as he drove his personal car from Douglasville into the City of Atlanta. When Bailey entered his intended destination, the two deputies followed him in and stared him down.

Things did not improve for Bailey. The next day, February 9, 2013, Wheeler issued the BOLO on Bailey, displaying Bailey’s photograph, calling him a “loose cannon,” and warning law-enforcement officers to “[c]onsider this man a danger to any [law-enforcement officer] in Douglas County and act accordingly.” And for the second day in a row, law enforcement—this time vehicles from both the Sheriff’s Office and the Police Department—followed Bailey as he drove his personal car.

Three weeks later, Bailey was rehired by the police department. Only then did supervisors there agree to call the Sheriff's Department and have the BOLO cancelled.

Major Wheeler claimed his BOLO announcement had no adversarial effect on Bailey's First Amendment rights. The court cannot see how this can possibly be the case. Bailey not only had reason to believe he would be subject to intimidating behavior if he exercised his rights, but that he also might end up full of bullets.

In this case, we readily conclude that Wheeler’s BOLO “would likely deter a person of ordinary firmness from the exercise of First Amendment rights.” First, the BOLO described Bailey as a “loose cannon” who was a “danger to any [law-enforcement officer] in Douglas County.” Viewed in a light most favorable to Bailey, this description, accompanied by Bailey’s photograph, created the impression that Bailey was mentally unstable and roaming Douglas County with a grudge against law-enforcement officers. Then, after inciting law-enforcement officers to fear for their lives, the BOLO empowered these now-anxious officers to “act accordingly” upon coming into contact with Bailey.

"Act accordingly" is the ultimate chilling phrase in law enforcement's hands, as the court points out to a willfully-obtuse Major Wheeler (the appellant).

Let’s pause for a moment to appreciate just how a reasonable law enforcement officer may have understood that instruction. Under Georgia law, when a subject is armed and dangerous, an officer may shoot the subject in self-defense—a term Georgia construes as having justifiable intent to use such force as the officer reasonably believes to be necessary to prevent death or great bodily injury. So, in other words, Wheeler’s BOLO gave all Douglas County law-enforcement officers a reasonable basis for using force—including deadly force—against Bailey if they reasonably misconstrued a single move Bailey made—such as reaching into his pocket when confronted by law-enforcement officers—as imperiling themselves or anyone else. We think that this situation, which potentially seriously endangered Bailey’s life, easily would deter a person of ordinary firmness from exercising his First Amendment rights.

Two other factors played into the chilling of Officer Bailey's speech. First, he was African-American, and department officers had already made a number of racist comments in his vicinity. Second, the BOLO was issued less than a week after Officer Chris Dorner of the LAPD had been the subject of a similar announcement -- one that resulted in officers all over the city placing itchier and itchier fingers on triggers. In the case of two unfortunate women out delivering newspapers, this resulted in eight officers firing over 100 bullets into their pickup truck. A BOLO can easily have deadly consequences, even without these two issues factored in.

The court finds it impossible to comprehend that such an order wouldn't have a chilling effect on the subject's speech. Or that the person issuing such an order would have the gall to consider himself a law enforcement officer.

Law-enforcement officers are sworn to protect and defend the lives of others. It is completely antithetical to those sworn duties for a law-enforcement officer to use his position to harness the power of an entire county’s law-enforcement force to teach a lesson to—and potentially very seriously endanger—someone who had the temerity to speak up about alleged abuses.

This is what happens to good cops. They speak up and lose their jobs. Or they stay in the force and are treated with suspicion and disdain. Either way, they are given no chance to change the culture from the inside. It's no wonder so many cops start out good and end up just like the worst of their numbers. Whistleblowing and breaking rank are considered something to be punished, rather than rewarded. Those wanting to make a career of law enforcement learn quickly the best way to get through with a minimum of hassle is to keep their heads down, eyes averted, and mouths shut.

Filed Under: bolo, douglas county, douglas county sheriff's department, georgia, police, whistleblowing

Snowden's 'Proper Channel' For Whistleblowing Being Booted From The NSA For Retaliating Against A Whistleblower

from the proving-Snowden's-point-for-him dept

NSA oversight and whistleblowing through proper channels: both pretty much worthless.

Members of the intelligence community and members of its supposed oversight have said the same thing repeatedly over the past few years: oh, we'd love to cut Edward Snowden a break, but he should have taken his complaints up the ladder, rather than outside the country.

As if that would have resulted in anything other than Snowden being cut loose from his job and his security clearance stripped. The NSA's Inspector General -- supposedly part of the agency's oversight -- was even more harsh in his assessment of Snowden's actions.

During a day-long conference at the Georgetown University Law Center, Dr. George Ellard, the inspector general for the National Security Agency, spoke for the first time about the disclosures made by former NSA contractor Edward Snowden.

In addressing the alleged damage caused by Snowden’s disclosures he compared Snowden to Robert Hanssen, a former FBI agent and convicted spy who sold secrets to the Russians.

[...]

“Snowden, in contrast, was manic in his thievery, which was exponentially larger than Hanssen’s. Hanssen’s theft was in a sense finite whereas Snowden is open-ended, as his agents decide daily which documents to disclose. Snowden had no background in intelligence and is likely unaware of the significance of the documents he stole,” Ellard suggested.

These are the words of the "proper channel." Ellard went on to state that had Snowden approached him with his concerns he would have pointed to the series of judicial rubber stamps that backed up the government's post-9/11 national security assertions as they approved more and more bulk surveillance.

That Inspector General -- the official channels, the oversight -- is now (mostly) on his way out of the agency for actions undertaken in direct conflict with his position, as reported by the Project for Government Oversight.

[L]ast May, after eight months of inquiry and deliberation, a high-level Intelligence Community panel found that Ellard himself had previously retaliated against an NSA whistleblower, sources tell the Project On Government Oversight. Informed of that finding, NSA’s Director, Admiral Michael Rogers, promptly issued Ellard a notice of proposed termination, although Ellard apparently remains an agency employee while on administrative leave, pending a possible response to his appeal from Secretary of Defense Ash Carter.

"Bring your complaints through the proper channels," said the proper channel, all the while making sure whistleblowers regret blowing the whistle. Ellard still has an appeal left to reclaim his position as a dead end for whistleblowers, but it seems unlikely the agency will be interested in welcoming a liability back into the fold. Ellard didn't just violate standard government policies on workplace retaliation but a fairly-recent presidential directive as well.

[The decision] was reached by following new whistleblower protections set forth by President Obama in an executive order, Presidential Policy Directive 19.

President Obama issued this in 2012, and it was put into force the next year, a few months before Snowden began dumping documents. The new directive created better protections but would have done nothing to aid Snowden in taking his complaints to the proper channels because he was only a government contractor, not an actual government employee.

It's somewhat of a surprise that Ellard managed to get caught in this loosely-protective framework, suggesting whatever he did was fairly egregious. Officials of his stature rarely see retaliation claims against them substantiated. But that's exactly what happened here.

Following PPD-19 procedures, a first-ever External Review Panel (ERP) composed of three of the most experienced watchdogs in the US government was convened to examine the issue. The trio -- IG’s of the Justice Department, Treasury, and CIA – overturned an earlier finding of the Department of Defense IG, which investigated Ellard but was unable to substantiate his alleged retaliation.

Also receiving a bit more substantiation are Snowden's claims that utilizing the proper channels within the NSA would have been fruitless -- something that has been pointed out by earlier whistleblowers, nearly all of whom have seen their careers ended and their lives turned upside down by government prosecutions for their actions.

Filed Under: ed snowden, george ellard, inspector general, nsa, proper channels, whistleblowing

Theranos's Insane Campaign To Punish Whistleblower, Who Happened To Be Famous Boardmember's Grandson

from the holy-crap dept

We haven't really written much about the insane Theranos scandal, though we discussed it on our podcast. The whole story is pretty crazy -- involving a heavily hyped up company that appeared to basically be flat out lying to everyone about what it could do. The company still exists, but barely. The company's founder and CEO, who was plastered across magazine covers and compared frequently to Steve Jobs, has been banned from running a lab for two years, and the company is now facing a $140 million lawsuit from its biggest partner, Walgreens, who claims that Theranos repeatedly lied to Walgreens.

All the while, Walgreens alleges that Theranos: actively misled the company; didn’t live up to the quality and regulatory promises; kept Walgreens in the dark about problems; refused to answer questions as media reports came out about those problems; accused Walgreens of leaking information to the press; and asserted that Walgreens was the one that had breached their agreement.

One thing that became clear as the whole scandal broke, was that the company continued to aggressively deny wrongdoing, even as it became more and more obvious that almost everything that Theranos was saying publicly, allowing the company to be valued around $9 billion, was completely bogus. One of the most striking stories that came out a few months ago, was a report on the almost cult-like response from Theranos after the very first of a series of articles exposing the fraud came to light. The reporter who did an amazing job in exposing Theranos was the Wall Street Journal's John Carreyrou. And according to a thorough recounting in Vanity Fair, after Carreyou's first article, rather than honestly addressing the allegations, this happened:

By the time she returned to Palo Alto, the consensus was that it was time, at last, for Holmes to address her hundreds of employees. A company-wide e-mail instructed technicians in lab coats, programmers in T-shirts and jeans, and a slew of support staff to meet in the cafeteria. There, Holmes, with Balwani at her side, began an eloquent speech in her typical baritone, explaining to her loyal colleagues that they were changing the world. As she continued, Holmes grew more impassioned. The Journal, she said, had gotten the story wrong. Carreyrou, she insisted, with a tinge of fury, was simply picking a fight. She handed the stage to Balwani, who echoed her sentiments.

After he wrapped up, the leaders of Theranos stood before their employees and surveyed the room. Then a chant erupted. “Fuck you . . .,” employees began yelling in unison, “Carreyrou.” It began to grow louder still. “Fuck you, Carreyrou!” Soon men and women in lab coats, and programmers in T-shirts and jeans, joined in. They were chanting with fervor: “Fuck you, Carreyrou!,” they cried out. “Fuck you, Carreyrou! Fuck. You. Carrey-rou!”

That same Vanity Fair article notes that the company's lawyer, David Boies, threatened employees for talking to journalists. Boies, you may recall, made a name for himself for taking on Microsoft in the 1990s, but since then has been involved in a series of... well... bad decisions. You may recall him sending out bullshit letters threatening media companies for reporting on the leaked Sony emails a couple years ago. Boies also represented Oracle against Google in the fight over copyrighting APIs, and also represented SCO, back during that company's ridiculous legal fight against IBM over Linux. In this case, Boies wasn't just a lawyer for Theranos, but on their board as well:

Meanwhile, Theranos had its lawyers send a letter to Rochelle Gibbons’s attorney, threatening legal action for talking to a reporter. “It has been the Company’s desire not to pursue legal action against Mrs. Gibbons,” a lawyer for Boies, Schiller & Flexner wrote. “Unless she immediately ceases these actions, she will leave the Company no other option but to pursue litigation to definitively put an end [to] these actions once and for all.”

It turns out that's not the only people Theranos went after. The same reporter who exposed the fraud and was the subject of those chants recently had another story detailing the ridiculous lengths that Theranos has gone to in an effort to silence one of the whistleblowers who revealed the problems at the company. The story is quite incredible (though, possibly blocked by the WSJ's paywall). The whistleblower was a guy named Tyler Schultz -- who just happened to be the grandson of well known former Reagan Secretary of State George Schultz... who also was on Theranos' board (the board was stocked with famous political people, and few with any actual experience in Theranos' field). The younger Schultz apparently had emailed Elizabeth Holmes pointing out how the company was doctoring research and received a lecture instead:

After working at Theranos Inc. for eight months, Tyler Shultz decided he had seen enough. On April 11, 2014, he emailed company founder Elizabeth Holmes to complain that Theranos had doctored research and ignored failed quality-control checks.

The reply was withering. Ms. Holmes forwarded the email to Theranos President Sunny Balwani, who belittled Mr. Shultz’s grasp of basic mathematics and his knowledge of laboratory science, and then took a swipe at his relationship with George Shultz, the former secretary of state and a Theranos director.

“The only reason I have taken so much time away from work to address this personally is because you are Mr. Shultz’s grandson,” wrote Mr. Balwani to his employee in an email, a copy of which was reviewed by The Wall Street Journal.

The rest of the story is pretty incredible. Schultz, smartly, quit that same day, and then reached out to regulators in NY to blow the whistle on misrepresentations by Theranos, helping lead to the eventual unraveling of the company. And, again, rather than deal with the actual problems, the company just targeted the younger Schultz (and, incredibly, the grandfather sided with the company).

In the past year and a half, the grandson and grandfather have rarely spoken or seen one another, communicating mainly through lawyers, says Tyler Shultz. He and his parents have spent more than $400,000 on legal fees, he says. He didn’t attend his grandfather’s 95th birthday celebration in December. Ms. Holmes did.

“Fraud is not a trade secret,” says Mr. Shultz, who hoped his grandfather would cut ties with Theranos once the company’s practices became known. “I refuse to allow bullying, intimidation and threat of legal action to take away my First Amendment right to speak out against wrongdoing.”

First of all, kudos to Tyler Schultz for standing up to this bullying. And, second, what the hell is wrong with Theranos that they seemed so focused on attacking anyone who questions them, rather than focusing on actually fixing the problem. I get that there's this view of Silicon Valley companies where there's something of a "fake it, until you make it" attitude, but there are limits.

There's much more in the WSJ story that is really quite incredible. It suggests a level of closing ranks to protect the reputation of Theranos, rather than actually dealing with the fact that their stuff didn't work the way they said it would.

Filed Under: david boies, elizabeth holmes, george schultz, john carreyrou, legal threats, tyler schultz, whistleblowers, whistleblowing
Companies: theranos

Despite Administration's Promises, Most Government Transparency Still The Work Of Whistleblowers And Leakers

from the the-government-can-doxx-you,-but-not-itself dept

Meet the new transparency/Same as the old transparency:

The Justice Department has kept classified at least 74 opinions, memos and letters on national security issues, including interrogation, detention and surveillance, according to a report released Tuesday by the Brennan Center for Justice.

There's nothing in the streets/Looks any different to me:

Also still classified are between 25 and 30 significant opinions issued between 2003 and 2013 by the Foreign Intelligence Surveillance Court (FISC), the secretive federal court that interprets the law governing foreign intelligence-gathering inside the United States.

And the slogans are replaced by-the-by:

[A]t the State Department, 807 international agreements signed between 2004 and 2014 have not been published.

The self-proclaimed "most transparent administration" isn't even more transparent than the last administration -- one run by a hawkish member of a politically-powerful family and given a blank check to increase government power by a terrorist attack on American soil.

Less transparent, perhaps, than any other previous administration, including those run by the truly corrupt (Nixon) or those engaged in actual wars against actual entities (rather than against loosely-defined concepts like "drugs" or "terrorism").

These previous administrations managed to be at least as transparent as the current one, even without the "disadvantages" of being presided over by a lawyer specializing in the Constitution and pushed towards openness by multiple leakers exposing multiple secret surveillance programs.

Of course, the Intelligence Community is claiming it's more transparent than ever.

“In the last several years the government has engaged in an unprecedented level of transparency regarding its intelligence collection authorities,” said Brian Hale, a spokesman for the Office of the Director of National Intelligence. Hale said that the transparency includes releasing thousands of pages of documents related to foreign intelligence surveillance on U.S. soil and numerous FISC opinions, including five opinions this year.

When the baseline is zero release, it's pretty easy to surpass these expectations while not being appreciably transparent. The Office of Legal Counsel claims national security prevents the release of these opinions. That may be true in some cases, but secret legal interpretations that have been pried loose suggest some of what's being withheld may just be legal guidance a great deal of the American public would object to. Washington Post's Ellen Nakashima points to the paper's publication of a 2002 OLC opinion that claimed torturing terrorism suspects was not only justified, but violated no international laws forbidding torture. The opinion claimed it was the laws that were bad, not the torture.

[I]nternational laws against torture “may be unconstitutional if applied to interrogations.”

Meanwhile, "national security" is also what's preventing almost half of the agreements made between the US and foreign governments from being published. But the State Department also notes that this is far from the only reason the agency won't allow the American public to know what legal bargains have been struck by their government.

State Department spokesman John Kirby said in a statement that “not every non-publication of an agreement is due to national security purposes.” The law affords multiple exemptions, he noted.

As for the FISC opinions, they're apparently undergoing declassification. But even though the ODNI has made significant strides towards opening up the inner workings of the nation's most secretive court, the releases have been inconsistent and lag far behind the issuing of the court's orders. On top of that, the ODNI has shown less interest in releasing FISC opinions dating back several years, presumably figuring that the new transparency is mostly a "going forward" concern. The ACLU is now suing the government, hoping to force the release of FISC opinions dating back to 2001.

Whatever transparency that now exists in the federal government isn't due to President Obama's pre-election sloganeering. It's been forced on the White House by whistleblowers and leakers. And the response has been far from adequate. When not prosecuting whistleblowers, the Obama administration has moved forward tentatively with plans that are mostly of the "will this do?" variety. His two possible replacements -- a plutocrat who seems to think fascism will make America "great" again and a career politician who found the secretive State Department not quite secretive enough -- offer little hope of expanded transparency in the coming years.

Filed Under: governments, leaks, secrecy, transparency, whistleblowing