Open season for Whistleblowers? Yes, we scan. Yes, we can. Yes, we care?

One of the best known whistleblowers at the moment is Edward Snowden. Snowden is a former government contractor who had access to information about National Security Agency programs, such as the interception of U.S. and European telephone metadata and the PRISM, XKeyscore, and Tempora Internet surveillance programs. The surveillance programs were classified and rely on a novel interpretation of Section 215 of the Patriot Act which was approved by a secret government court, the Foreign Intelligence Surveillance Act Court (FISC). Snowden gave certain selected NSA documents to the Guardian and the Washington Post because "I can't in good conscience allow the U.S. government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they're secretly building".

National security and the public’s right to know are often viewed as pulling in opposite directions, so balancing the two is a difficult task, but there are international principles which outline various circumstances under which governments should protect people from punishment if they disclose information of public concern.

The Tshwane Principles (the Global Principles on National Security and the Right to Information), published in june 2013, assert that laws should protect public servants who disclose information to the public so long as four conditions are met:

  1. The information concerns wrongdoing by government or government contractors
  2. The person attempted to report the wrongdoing, unless there was no functioning body that was likely to undertake an effective investigation or if reporting would have posed a significant risk of destruction of evidence or retaliation against the whistleblower or a third party (shortened for readability);
  3. The disclosure was limited to the amount of information reasonably necessary to bring to light the wrongdoing; and
  4. The whistleblower reasonably believed that the public interest in having the information revealed outweighed any harm to the public interest that would result from disclosure.

Espionage Act

abode of chaosTo the extent that a country does have laws that criminalize disclosure to the public of classified information, any punishment should be proportionate to the harm actually caused. The US uses the Espionage Act to criminalize disclosure. Allthough in november 2012 Obama signed the Whistleblower Protection Enhancement Act (WPEA), a law that improves protections for federal employees and makes it easier for the government to discipline employees who retaliate against whistleblowers, national security and intelligence employees were left out of the WPEA. Instead, they are charged under the Espionage Act. Snowden currently faces three charges: Theft of government property, unauthorized communication of national defense information and willful communication of classified communications intelligence information to an unauthorized person (the last two charges fall under the Espionage Act). The US government has in the past argued that the Espionage Act does not require it to prove that a whistleblower intended to harm the national interest or that the publication of the information caused actual harm. Recently, US courts seem to embrace this line of reasoning, so as all charges carry each a maximum of ten years in prison, Snowden faces a maximum of 30 years in prison if he ever returns or is deported to the US.

The Tshwane Principles are not binding but they reflect jurisprudence and practice from around the world. Particularly significant are two decisions of the European Court of Human Rights (Bucur and Toma v. Romania and Guja v. Moldova) and to a lesser extent the adoption by the Parliamentary Assembly of the Council of Europe of Resolution 1729 (2010) and Recommendation 1916 (2010) on the protection of whistleblowers, allthough no mention is made by the Assembly of whistleblowers on national security matters.

Does the disclosed classified information on national security matters concern wrongdoing if it received judicial approval by the FISC? Only the government's side is represented effectively in its deliberations, a former federal judge who served on the FISC said. Does it cover the electronic monitoring of European Union offices and computer networks? And what about the interception of diplomatic e-mails? Does that comply with the Vienna Convention on Diplomatic Relations and the lesser-known Tallinn Manual of the Northern Atlantic Treaty Organisation? It's the appropriate time to use the Tshwane Principles to influence the future development of hard law on this territory.

As Nicholas Thompson writes "Information gives you power, and surveillance gets you information. But there’s a risk in going too far – and there’s a danger of disillusionment and backlash, as more and more people think the country  you lead isn’t living up to its ideals". Yes, we care?

P.s. Snowden fled the United States prior to his first disclosures, first to Hong Kong and then to Russia where he received temporary asylum. Ironically, according to a survey by the Justice Initiative and a member of the University of Copenhagen, Russia is the only European country surveyed in which significant numbers of public servants were convicted for the public disclosure of information, but hey at least he is not gay.


First Photo by See-ming Lee

Second Photo by Thierry Ehrmann, abode of chaos



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