Centre for Communication Governance at NLU delhi
Literature from the International Context (Other Whistleblowers)

Jane Mayer, The Secret Sharer, The New Yorker, 23 May, 2011 (Last Accessed 1 September, 2013)

Thomas Drake had grave doubts about the NSA’s use of domestic surveillance. Drake, then a senior executive at the NSA, revealed information to The Baltimore Sun and was ultimately indicted under the Espionage Act. This article uses Drake’s story as a lens to explore the larger issues of warrantless surveillance in post–9/11 America.

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John D. O’Connor, “I’m the Guy they called Deep Throat”, Vanity Fair, July 2005

Despite three decades of intense speculation, the identity of “Deep Throat”—the source who leaked key details of Nixon’s Watergate cover-up to Washington Post reporters Bob Woodward and Carl Bernstein—had never been revealed. However, at age 91, W. Mark Felt, number two at the F.B.I. in the early 70s, finally admitted to that historic, anonymous role. This article puts a name and face to Mark Felt, one of American democracy’s heroes.

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Pamela Collof, The Whistleblower, The Texas Monthly, April, 2003 (Last Accessed 1 September, 2013)

This article is a profile of the Enron whistleblower, Sherron Watkins. The article is a narrative of what life is like for a whistleblower who, despite being nationally-lauded, still finds herself rejected by the high-rolling Houston society set to which she once belonged.

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Cory Kilgannon, Serpico on Serpico, The New York Times, 22 January, 2010 (Last Accessed 1 September, 2013)

This article is a profile of Frank Serpico, the honest cop who exposed NYPD corruption. Bearded, bitter, and in his early seventies, Serpico lives a monastic life along the Hudson, just a few hours north of his former city. The article outlines the difficulties faced by him in his path as a righteous police officer and the steps taken by him to protect himself after the exposure.

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Laurie Abraham, Anatomy of a Whistleblower, Mother Jones, January/February, 2004 (Last Accessed September, 2013)

Jesselyn Radack was a “Lifetime TV writer’s dream”—the mother of two young children and pregnant with her third who had privately struggled with MS since college. She was a government lawyer with the Justice Department’s ethics unit when a colleague asked her to look over the FBI’s interrogation of the John Walker Lindh, the “American Taliban” captured during the 2001 invasion of Afghanistan. She spoke up about the impropriety of Lindh’s being questioned without a lawyer present, and quickly became emblematic of the Ashcroft-era treatment of whistleblowers, her life turned upside-down. And then she did the most unlikely thing of all—became an activist for whistleblowers across the nation. She is currently the National Security & Human Rights Director of the Government Accountability Project. This article details the struggle that she had to go through due to the lack of sufficient whistleblower protection laws.

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Rahul Sagar, Secrets and Leaks: The Dilemma of State Secrecy, Princeton University Press 2013

Secrets and Leaks examines the complex relationships among executive power, national security, and secrecy. State secrecy is vital for national security, but it can also be used to conceal wrongdoing. How then can we ensure that this power is used responsibly? Typically, the onus is put on lawmakers and judges, who are expected to oversee the executive. Yet because these actors lack access to the relevant information and the ability to determine the harm likely to be caused by its disclosure, they often defer to the executive’s claims about the need for secrecy. As a result, potential abuses are more often exposed by unauthorized disclosures published in the press.

But should such disclosures, which violate the law, be condoned? Drawing on several cases, Rahul Sagar argues that though whistleblowing can be morally justified, the fear of retaliation usually prompts officials to act anonymously–that is, to “leak” information. As a result, it becomes difficult for the public to discern when an unauthorized disclosure is intended to further partisan interests. Because such disclosures are the only credible means of checking the executive, Sagar writes, they must be tolerated. However, the public should treat such disclosures sceptically and subject irresponsible journalism to concerted criticism.

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Indira Carr, The UK Bribery Act: Business Integrity and Whistleblowers, 4 Financial Fraud Law Report 361 (2012)

This article’s main focus is the extent to which the UK Bribery Act, 2010 and the Guidance Document prepared by the Secretary of State, addressing the procedures that commercial organizations can put into place to prevent bribery, include whistleblower protection. The article also examines provisions for whistleblower protection in the four anti-corruption conventions that the UK has ratified in order to provide a context for a discussion of whistleblower protection in the Bribery Act and the Guidance Document.

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Gerard Sinzdak, An Analysis of Current Whistleblower Laws: Defending a More Flexible Approach to Reporting Requirements, 96(6) California Law Review 1633-1668 (Dec 2008)

This Comment analyses the arguments both for and against strict report recipient requirements. This analysis reveals that neither an external nor an internal report recipient requirement provides sufficient protection to whistleblowing employees, who face a very real threat of retaliation. Studies indicate that whistleblowers choose their report recipient based on a wide variety of practical considerations-including the employee’s status in an organization, the status of the wrongdoer, the organization’s culture, and the significance of the wrongdoing. A rigid report recipient requirement whether external or internal-cannot match the diversity of situations in which employees find themselves. An unduly restrictive reporting requirement therefore inevitably leaves many good-faith whistleblowers unprotected. In order to avoid unjust denials of protection, this Comment proposes that states adopt a more open-ended report recipient standard. More specifically, states should provide protection to employees who report either internally to a supervisor or externally to a government body so long as the employee possessed both a subjectively and objectively reasonable belief that the recipient could correct the employer’s unlawful behaviour.

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Terry Morehead Dworkin, SOX and Whistleblowing, 105(8) Michigan Law Review 1757-80 The Louis & Myrtle Moskowitz Conference on the Impact of Sarbanes-Oxley on Doing Business (Jun., 2007)

The language of the Sarbanes-Oxley Act (“SOX”) leaves no doubt that Congress intended whistleblowing to be an integral part of its enforcement mechanisms. The Act attempts to encourage and protect whistleblowers in a variety of ways, including providing for anonymous whistleblowing, establishing criminal penalties for retaliation against whistleblowers, and clearly defining whistleblowing channels. Unfortunately, these provisions give the illusion of protection for whistleblowers without effectively providing it. There is increasing evidence that virtually no whistleblower who has suffered retaliation and pursued remedies under SOX has been successful. Additionally, social science research and studies of whistleblowing laws indicate that SOX is unlikely to increase reports. This Article compares the SOX whistleblowing provisions with other state and federal whistleblowing statutes, discusses the shortcomings of the SOX provisions, and explains why SOX needs to be revised in order to help ensure the integrity of the markets. Recommended revisions include significantly rewarding whistleblowers that come forward with novel and relevant information. Experience with the False Claims Act and equivalent state statutes show such incentive legislation to be the only truly effective legislative model. The Article goes on to discuss various ways to create an incentive reward fund. While some of the current law as well as some of the suggested revisions potentially put SOX in conflict with privacy and whistleblowing laws of European countries, the conflicts can be eliminated through judicious use of exemptions and/or through judicial interpretation.

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Brian Martin, Illusions of Whistleblower Protection, 5 UTS Law Review 119 (2003)

This article premises that official channels do not work very well and cannot be expected to provide sound whistleblower protection. It thus suggests that a much more productive approach is to promote the development of understanding and practical skills for survival in organizations. The implication is that official channels provide an illusion of protection and distract attention from much more effective avenues for intervention. Other official channels to protect whistleblowers include hotlines, auditors-general, ombudsmen and courts.

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Jenny Mendelsohn, Calling the Boss or Calling the Press: A comparison of Briitish and American Responses to Internal and External Whistleblowing, 8 Wash. U. Global Stud. L. Rev. 723 (2009)

The article begins by analysing the fundamental difference between the American and British whistleblower protection laws. The American system gives greater protection to external reports, while the British system fiercely protects internal reports. The article argues that there need not be “one right path.” Rather, a model whistleblower protection law would not heavily favour either external or internal reporting: it would offer protection to both types of reports in certain instances.

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Reuben Guttman, Whistleblowers tuning in to foreign cases, The European Lawyer (2012

This article outlines key provisions of the US Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 which reward whistleblowers who reveal examples of corporate bribery, the territorial scope of the measures and the implications for multinationals.

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John Bowers and Jeremy Lewis, Whistleblowing: freedom of expression in the workplace, 6 European Human Rights Law Review 637-648 (1996)

This article assesses the scope of protection which employee whistleblowers can expect to receive under the European Convention. Particularly, it discusses whether Art.10 ECHR gives protection to an employee who raises complaint or matter of concern over employer’s practices. The authors argue that despite some fine rhetoric emanating from the European Court of Human Rights the whistleblower cannot yet be confident of receiving assistance from Strasbourg.

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Indira Carr & David Lewis, Combating Corruption through Employment Law and Whistleblower Protection, Ind Law J (2010) 39 (1) 52-81. (Need to Access the Oxford Industrial Law Journal)

This article examines the extent to which employment law has the potential to fight corruption by imposing rights and duties on employers and workers and analyses the extent to which the UN Convention on Corruption 2003 (UNCAC) protects those who speak out about malpractices within an organisation. Section 2 focuses on UNCAC while Section 3 focuses on the extent to which employment law imposes obligations on those within the workplace to report corrupt activities and the circumstances in which those who speak out about corruption are protected under UK employment law. It is argued that because of the inadequacies of the existing legislation and the threat posed by disclosures via the Internet, organisations have much to gain from devising effective policies on both internal and external reporting that do not inhibit the exposure of corruption or unnecessarily curtail freedom of speech. The authors conclude by welcoming the draft recommendations from the Council of Europe’s Parliamentary Assembly to draw up a set of guidelines for the protection of whistleblowers and consider drafting a framework convention.

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