Whistleblowing and leaking: pushing the limits of accountability

The Guardian newspaper has been publishing reports about the US Government’s vast data surveillance operations based on leaks of classified information from someone with top secret clearances. Mark Worth, Whistleblower Programme Director, discusses the role of the leaker in holding governments to account.

Edward Snowden, a 29-year-old computer expert, is fast becoming a household name. His release of secret documents showing how the US government pursued a policy of widespread surveillance over its citizens has caused acute embarrassment for the US administration and spurred a much-needed public debate on the limits of privacy invasion in an age of global terror and the role of the leaker.

For Transparency International we have no doubt that transparency is something that should be a cornerstone of government institutions. It makes governments and societies stronger; it allows for public debate, oversight and criticism – hallmarks of democracy.

Issues of national security often force the debate on the limits transparency and on the duties of those who are privy to government secrets when they believe the government’s actions are wrong. Our growing technological sophistication pushes these limits even further, though it does not change the fundamental questions of the people’s right to know.

It is too soon to tell what long-term effect Snowden’s revelations will have, but he has kick-started a crucial debate on government accountability. Transparency and accountability together help to ensure that there is no impunity in cases of wrongdoing by any party – government, companies, civil society, individuals. To ensure transparency and accountability, societies need clear whistleblower protections and policies to let people speak out and ensure their safety when they to call out perceived wrongdoing. Whistleblowers can be beacons of integrity in dark places.

Snowden believes he is exposing government wrong-doing, so should he be entitled to seek protection under the US’s whistle blower laws, or is he a traitor who should be prosecuted?

Whistleblowing is a complex topic that has been on Transparency International’s agenda for many years because of its importance in the fight against corruption. We believe that the right of citizens to report wrongdoing is a natural extension of their right of freedom of expression, and is linked to the principles of transparency and integrity.

All people have the inherent right to protect the well-being of other citizens and society at large, and in some cases they have the duty to report wrongdoing.

A whistleblower should be protected if what he or she discloses is in the public interest, and is being disclosed in a way that can potentially fix what is damaging the public interest by the remaining secret. A whistleblower should in the first instance use the appropriate channels within an organisation to raise his or her concerns.

Emerging criteria for whether the right to information should be restricted on national security grounds include whether the disclosure would pose a real and identifiable risk of significant harm to a legitimate national security interest, and whether the risk of harm outweighs the public interest in disclosure. The Open Society Justice Initiative has developed internationally recognised guidelines that clarify these crucial tests.

The US government has not yet proven that keeping quiet about PRISM, as the surveillance tool is called, meets these criteria.

Edward Snowden clearly believes he has acted in good faith; what we don’t know yet is whether he first used internal channels to air his concerns. He says: “My sole motive is to inform the public as to that which is done in their name and that which is done against them… I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”

The debate over the coming months should help clarify Snowden’s role in this complex affair. Too often governments hide behind national security to sidestep accountability. At the very least the US administration will now have to defend its actions publicly.  Whistleblower protection laws in the US are some of the best in the world. It remains to be seen whether Snowden would be able to use them in his defence in a court of law should the US government decide to seek his extradition from Hong Kong, where he is hiding, and prosecute him for his actions.