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[This article is adapted from "The Ethics of Whistleblowing" which is Part I of a two-part analysis of ethical and legal questions pertaining to whistleblowers who expose government wrongdoing. The second part of the analysis is here.]

Whistleblowers and Confidentiality Obligations

Whistleblowing involves the revelation of misconduct or illegality occurring in an organization. This necessarily involves disclosing secret information beyond the bounds intended by those trying to keep it secret, and often this involves publication and disclosure to the general public. By virtue of the fact that whistleblowers exist within the organizations they are exposing, they are almost always under some contractual or statutory requirement not to disclose the information they are disclosing. If one takes these obligations at face value then it would appear that whistleblowing must always be regarded as a breach of law, and possibly also a breach of ethics, at least insofar as it involves a breach of contract with the organization where the whistleblower is employed. Under such a view, whistleblowing can never be legally justified, and it is only through an ethical imperative to break the law that it could be justified ethically.

Confidentiality contracts are a legitimate part of the management of many kinds of organizations, and in many cases they are indispensible to the successful operation of the organization. This is true in most legitimate professions, and of course, all illegitimate ones. It is certainly true that people and organizations can enter into confidentiality contracts of this kind, and in the ordinary course of business these contracts create justifiable legal and ethical obligations for the parties involved. If a person agrees to confidentiality in dealings with an employer or client, and agrees to keep sensitive material a secret, then ordinarily this would be a legitimate and binding contract that would bind the person to make good on their promise. Failure to do so would be a breach of contract, and might also involve breaches of other legal duties (e.g., fiduciary duties).

However, one exception to this ordinary contractual case is crucial: confidentiality contracts are not legitimate and should not be regarded to be ethically or legally operative when the confidentiality is designed to protect secret unlawful actions that are being taken by one of the parties. This is part of a wider objection in law to what are sometimes called “unlawful agreements.” Broadly speaking, contracts cannot be regarded as legitimate if they involve agreement to perform an unlawful action, or an action designed to further an unlawful purpose. This is the basis on which one can regard whistleblowing as a lawful activity, notwithstanding that it often proceeds in breach of an agreement of confidentiality. In cases of unlawful action occurring in an organization, the action of keeping information confidential will not usually be illegal in its own right, since people are rarely under a positive legal obligation to report breaches of law (with some exceptions). Regardless, this is no bar to the invalidity of a contract obliging a party to do this. A contract can be considered unlawful even if the acts agreed to be taken are perfectly legal, “... by reason of the wrongful purpose of one or both parties in making it.” Hence, a confidentiality contract which protects an underlying unlawful activity is not generally legitimate.

The doctrine of unlawful contracts has a long and robust standing in jurisprudence and common law. Its proper philosophical basis arises from the fact that contracts are conditional transfers of property rights, and this restricts the scope of contracts to actions that are consistent with these rights. The doctrine can also be viewed as a desirable “public policy” arising from the desire to eschew granting legal assistance to lawbreakers. Legal scholar George Strong summarizes the doctrine by saying that, “... an illegal contract is one that is unenforceable as a matter of policy because enforcement would be injurious to the best interest of the public.” Unlawful contracts are usually regarded to be void at common law, though there are detailed rules for this, based partly on an assessment of which party to the contract is most blameworthy for the unlawful aspects of the matter.

When assessing whistleblowing activities that involve the publication of documents or information relating to illegal activity, this means that there is an adequate philosophical basis for the view that disclosure does not involve law-breaking. This is so even when the disclosure is made in violation of confidentiality agreements or other legal duties that would usually be operable. In such cases, the whistleblower is not a “noble law-breaker” — he is no law-breaker at all.

The principle of non-enforcement of unlawful agreements is assaulted by the statist notion that the government may deem information on any aspect of its activities to be “classified,” and this simple declaratory act overrides the right to disclose the unlawful activities of government. According to this view, no matter the nature of the wrongdoing or despotism of any government agency, its officials may simply decide that such-and-such information is “classified” and thereby bind those around them to keep their law-breaking a secret from the general public. This view of government power is epitomized in a recent article by Law Professor Geoffrey Stone, saying that Snowden “… is most certainly a criminal who deserved serious punishment.” Stone argues that “[t]he government cannot always attach conditions to employment. For example, it cannot constitutionally require its employees to agree never to criticize the president or never to get an abortion or never to invoke their rights under the Fourth Amendment. But it is well-settled that the government can require its employees to agree to some conditions, and one of them is not to disclose classified information.”

Stone’s emphasis on “classified” information may seem to limit the power of government only to the protection of some small category of legitimate restrictions. But this is an alleged exception that swallows the rule. After all, it is the agents of government that determine what information is “classified,” and this status means nothing more than the fact that it has been commanded that this information must be kept secret. Hence, to say that the government may legitimately require its employees not to disclose “classified” information, literally means that it may require its employees not to disclose any information that the government deems should not be disclosed. Under this view the government has full discretion to prevent any disclosure of any information it does not want publicly known, regardless of the nature of that information.

One of the primary problems of special legal treatment of “classified” information is that it counts out some of the most important areas of government from the dictates of law. The status of “classified” information is commonly accorded to documents pertaining to intelligence gathering and military affairs. Yet these are some of the most consequential and dangerous areas of the State. To accept “classified” status as determinative of the rights of disclosure is to cut off some of the most important actions of the government from any investigative action. It does not take much knowledge of history to understand that this notion would be very useful to many despotic regimes that have murdered and enslaved their citizens on the “lawful” basis of their own legislative acts. In light of these considerations, no special status can be accorded to a document based purely on the assertion of special privilege by the very entity under scrutiny.

Snowden and the NSA scandal

In the case of the NSA scandal, Edward Snowden infiltrated the NSA in much the same way that an undercover police officer infiltrates a private criminal syndicate. Snowden applied for a position at a consulting firm Booz Allen Hamilton, who do extensive technical work for the NSA. He obtained the documents now released through his work as a contractor for the agency, and it was in this capacity that he was capable of obtaining access to secret government documents that would otherwise have been beyond his reach. In fact, Snowden has since confirmed that he took the position at Booz Allen Hamilton with the intention of gathering evidence of the NSA surveillance programs. As with any good undercover investigator, Snowden infiltrated his target with assurances of confidentiality that he knew were phony. And as with any undercover investigator, he did not thereby lose the right to disclose details of the criminal actions that he discovered.

Notwithstanding the ordinary contractual duties that Snowden’s work would impose, it is clear that the information disclosed by Snowden points to a massive instance of misconduct and illegality by an agency of the US government, on a scale that gives rise to legitimate fears of despotic control. The surveillance system detailed in the leaks is of a magnitude that is unprecedented in history, dwarfing the surveillance operations of even the most totalitarian states of the past. According to recent claims from another whistleblower, former NSA intelligence analyst Russ Tice, the agency has used its surveillance network to gain information on high-ranking political and legal targets that can affect its own operations. This has allegedly included surveillance of members of Congress, especially on intelligence, judicial and armed services committees, officials at the State Department, members of the Executive service at the White House, and even the current president of the United States (alleged to have been surveilled when he was a senator). It has also allegedly included lawyers, law firms and judges, including judges on the US Supreme Court and two FISA Court judges — the latter being the very people who are charged with judicial oversight of the NSA surveillance system. Other alleged targets have included high-ranking military officers, anti-war groups, US banking firms and other major companies and non-government organizations.

There are, of course, legions of defenders of the NSA surveillance program who maintain that it is all perfectly lawful, and constrained by rigorous judicial and congressional oversight. Such claims are belied by the demonstrated failures of any of these alleged safeguards, and the overt lies told by public officials in covering up these programs. Prior to the Snowden leaks the Director of National Intelligence, General James Clapper, lied directly to the US Congress about the agency’s collection of data on US citizens, falsely claiming that the agency did not wittingly collect data on US citizens.

Important court rulings on the program have been kept secret, including a FISA Court opinion that allegedly ruled some actions in the surveillance programs to be in violation of the relevant statutory framework and also in violation of the Fourth Amendment to the US Constitution. More recently, the head of the Senate Intelligence Committee, Senator Dianne Feinstein, lied to the public about her knowledge of abuses of power by the agency, despite having access to these secret court rulings, as well as other reports of abuse. All of this amounts to a clear instance in which an agency of the US government operates beyond the rule of law, conducting a secret program of mass surveillance beyond its legal and constitutional powers. The programs are justified on the basis of “secret law” that is not made public for scrutiny, nor communicated to congressional oversight bodies.

For those who believe in non-aggression and adherence to standards of natural law, the suggestion that government action is legitimated by democratic oversight is not acceptable. But even if one were to accept the democratic justification for coercive government power, under the oversight of the alleged “representatives” of the people, there is no viable theory of democracy that can justify the operation of a secret surveillance program of this kind, with overt lying to and by those same “representatives” about the program. By any rational standard, the surveillance programs of the NSA involve acts of misconduct and law-breaking that must rightly be revealed to the general public.

In view of this fact, it is not correct to regard the ordinary operation of confidentiality rules as being either ethically or legally binding. Whatever contractual or legislative restrictions would ordinarily operate on Snowden’s employment, they cannot be regarded to be legitimate if they require him to keep secret his knowledge about government misconduct and law-breaking.

Ben O'Neill is a lecturer in statistics at the University of New South Wales (ADFA) in Canberra, Australia. He has formerly practiced as a lawyer and as a political adviser in Canberra. Contact: email.