by Jeff Shantz
The most operative form of resistance within the online virtual community is computer virtuosity. As previously mentioned, there are a number of available tools at someone’s disposal that allows him or her to operate online anonymously. This comes in the form of virtual private network, cryptographic systems, various operating systems and more. In the most basic sense, the above highlights techniques to evade governmentality and disciplinary power. The ability to operate online anonymously or without trace is similar to Plato’s (360 B.C.E) text, “The Ring of Gyges”, where the shepherd Gyges of Lydia discovers a golden ring that possesses the ability to render him invisible to others. Notwithstanding, these means are also the same tools available to disciplinary subjects who live in oppressive nation states that are attempting to unfasten current constraints of law and society. For this reason, worldwide efforts to rid of such services or render their use illegal will pose more harm than good. In any case, liberal democracies need to engage in rigorous debate in order to be able to carefully balance security and freedom online. Otherwise, the Internet may fall under the control of a users independent sovereign, which would thereby inhibit the ability to connect with others around the world.
Continuing ahead in the twenty-first century, society will increasingly intersect with technology. As crime and technology become progressively innovative, sovereign states and regulatory agencies need to develop diverse methods and techniques to target deviance. Accordingly, solutions for advancing security within cyberspace must be implemented through mechanisms that do not impinge upon reasonable expectations of online privacy. To date, the virtual online community has functioned without a central regulatory authority. This demonstrates how the ethos of the Internet, which is anarchic and open in nature, can also be cooperative and functional. Thus far, various disciplinary power techniques for social control have been implemented online. Meanwhile, notions of governmentality increase alongside as environmental, social and economic systems globalize the virtual online community. As important as it is for cybercitizens to operate freely online, it is equally important to be mindful of how cybercrime and its potential legal responses impact the openness of the Internet.
Chapter 5
Walking the Plank: Inciting Change through Whistleblowing
Everything is code and language. The power of code, language and of words is the ability to define, unite, and separate us from others and from ourselves. The word “whistleblowing” has conjured up an abundance of emotions and feelings over the years. Recently, this word has once again become a household noun, adjective and recurrent theme. Janet Near and Marcia Miceli (1985, 4) provide a straightforward definition for whistleblowing and define it as “the disclosure by organization members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organizations that may be able to effect action.” Within the Canadian context, Kenneth Kernaghan and John Langford provide a broader definition of what constitutes whistleblowing within the public sector as “both the open disclosure or surreptitious leaking to persons outside the organization of confidential information concerning a harmful act that a colleague or superior has committed, is contemplating, or is allowing to occur” (1990, 94). The social determinants of whistleblowing and challenge of fostering the disclosure of dishonest or illegal behavior are particularly difficult to achieve. The treatment of the whistleblowers has also varied greatly throughout time and space. Going forward into the age of information, there is an imperative need to understand what has been discerned hitherto understood as whistleblowing, how whistleblowers can break new ground and how whistleblowers are (mis)treated.
Legislative Nodes: Sometimes Conducive, Sometimes Disparaging
The notion of whistleblowing is not unique to this generation. Needless to say, there are specific legislative nodes that highlight how whistleblowing has come to be conceptualized in the global North. In the early 1970s, Ralph Nader first coined the term as “an act of a man or woman who, believing that the public interest overrides the interest of the organization he serves, blows the whistle that the organization is in corrupt, illegal, fraudulent or harmful activity” (Nader 1972, n.p.). The definition provided by Nader is an admirable illustration of how whistleblowing can be carried out on an individual basis. The descriptive nature and scope of the term has undergone profound change, however, as societies have become interconnected at a level unparallel in history, largely due to ever-expanding technological capacity. Within the continental United States, the False Claims Act of 1863 carved a path for legislation enabling whistleblowing in order to combat the rising threat of corporate crime. During the American Civil War period, defense contractors were supplying the Union Army with deficient, fraudulent and hazardous products. Some well-known commercial examples dating from 1861 to 1865 include but are not limited to: gunpowder that had been salted down with sawdust, faulty rifles, and feeble horses in poor health (Lahman 2005, n.p.). The Act was ratified during this period to encourage ordinary citizens to come forward and reveal information pertaining to counterfeit goods and supplies purchased by the Union Army. The idea was simple: combat corporate fraud by gaining insider knowledge. In order to persuade and unveil wrongdoing, President Abraham Lincoln included a “qui tam“ provision and reward system into the act (Beck 1999, n.p.). This permitted private citizens, unaffiliated with the American government, to come forth and file action against illegal or dishonest behavior on the governments’ behalf. Within this provision, citizens were entitled to a reward between 15–25% of the recovery from a government lawsuit whereby the intelligence led to a conviction. Furthermore, whistleblowers were also at liberty to receive reparations for legal fees and other expenses that may have incurred throughout their process. At the inception of whistleblower legislation, state actors encouraged whistleblowing and paid workers who came forward to disclose acts of transgression. Critics of capitalism may view the False Claim Act as inherently exploitative and insulating for legitimizing state interests. However, the Act is meaningful as it recognizes that unscrupulous behavior should be made public. Since 1863, this line of thought has not profoundly change; however the treatment of whistleblowers has greatly varied when the matters in question are supportive of or opposite to government or private sectors.
A half-decade later: the Lloyd-La Follete Act (1912) was enacted to provide protection to civil service employees to criticized their respective agency and superiors. By allowing citizens to come forward and disclose information without fear of dismissal, the Act was put into practice under the First Amendment of the United States Constitution. Up until this point in time, the federal government was able to oust civil employees without due process (Smith and Gebale 1974). Consequently, employees feared that termination of employment was inevitable when evidence of wrongdoing is revealed. In essence, the Act secured their employment by preventing wrongful termination, which might otherwise be politically motivated. Similarly, in 2002, the Sarbane-Oxley Act was passed to protect whistleblowers at American corporations. This Act came about as a result of corporate and private accounting scandals pertaining to the cases of Enron, Tyco International, Adelphia, Peregrine Systems and WorldCom (Kohn et al. 2004). Section 1107 of the Sarbane-Oxley Act states that “whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any federal offense, shall be fined under this title, imprisoned not more than 10 years, or both.” Undoubtedly, the Act is useful for the governments to persecute wrongdoing within a private entity. Evidently, laws around whistleblowing have manifested around private and state interests. This is unsurprising, however, as hives of industries catalyze capitalist industrial growth. In respect to the brief aforementioned legislative overview, it is reasonable to assume that a government understands the impacts of whistleblowing. Yet, th
ese laws fail to uphold to protection of whistleblowers equally. Concurrently, care of and legislation around whistleblowing greatly vary from nation state to nation state.
In respect to whistleblowing in Canada, the Law Reform Commission provides limited guidance to those in power at the upper and lower courts. In fact, there are only two considerations when a question of fact is presented via whistleblowing: (1) disclosure is justified only if the whistleblower has a reasonable ground for believing that a crime or civil wrong has occurred or will take place, and (2) that good faith on the part of the whistleblower must be proven (Ontario Law Reform Commission, 1985). One interpretation of the Commissions considerations is that that these standards are reasonable as it reduces the potential for individual or organizational harm that may, and can, arise from unreliable and invalid facts. Another interpretation may view this language as being demonstrative of the federal governments concerned for the protection of a wrongdoer, rather than the whistleblower him or her self. Undoubtedly, a reasonable grounds test is most useful in order to protect potential damage to reputation should there be a lack of sufficient evidence otherwise. However, it is this second consideration that becomes questionable in nature as it signifies a similar tone relating to whether or not a whistleblower is a reasonable person. In this sense, it is may be possible to dismiss that an employee was reasonable if the case of whistleblowing relates to surreptitious knowledge of harm as it often does. On that same note, it may state that public servants are not allowed to express their personal views on government policies (Kernaghan 2003). Consequently, it becomes extraordinarily challenging for a court to decide whether or not the disclosure is being imparted on the premise of concern for the public interest or whether it is motivated by personal statements. In the case that it is the latter, the whistleblower may face serious legal ramifications or termination of employment. In fact, in most cases, whistleblowers face significant reprisals or threats thereof (e.g., Daniel Ellsberg, Thomas Drake, Julian Assange, Chelsea Manning, or Edward Snowden).
Opaque Webs: Exposing Health and its Consequences
In Canada, whistleblowing legislation has fallen short of the United States and Europe. Paul Thomas (2005) notes that there are three principal forms of whistleblowing in the Canadian public and private sector: internal disclosure, authorized external disclosure, and unauthorized external disclosure. In his article, he examines how legislation surrounding the idea of whistleblowing has been designed to encourage and protect public servants to reveal dishonest and illegal behavior. This notion rings similar to America’s False Claims Act (1863) and the Lloyd-La Follette Act (1913). On the other hand, Thomas warns that Canadian legislation is systematically designed to fail. Ultimately, he argues, the success of any law will be imparted by the political and administrative culture that supports the ethical awareness and responsible behavior in the daily practices of Canadian society (Thomas 2012).
In the late 1990s, Shiv Chopra’s whistleblowing brought attention to one of the most significant incidents of federal wrongdoing in the public eye. Chopra, a microbiologist and human rights activist, and two co-workers, blew the proverbial whistle at the Canadian Senate’s “Standing Committee on Agriculture and Forestry” in 1998 when they revealed how senior supervisors were pressuring their approval of multiple pharmaceuticals without rigorous testing. Among the pharmaceuticals in question was the drug “ciprofloxacin,” which is largely used in cattle production today, as it was believed to be unsafe. Chopra warned to the federal government that the drug was unsafe and unsuitable as an antibiotic for both humans and animals. Despite the warning, the Canadian government approved the use of ciprofloxacin. Today, it is available and used in food production throughout United States, the United Kingdom, India, Spain, Pakistan, and Russia. Tragically, the drug has caused a death in the past few years (Adefurin 2011). In 2004, Chopra was fired from Health Canada. This case highlights how written legislation and courtroom practices can greatly differ. It is also demonstrative of elite deviance within Health Canada and the federal government as it pertains to corporate espionage, exploitation, and food processing. This is hegemony at its highest form as economic and political elites come to have society accept their negative and harmful behavior as regular and accepted routines of every day life (Gramsci 1971). This is also an example of surplus value at the expense of public health. Without a doubt, pharmaceutical industry assumes an important role in sustaining the Canadian and global economy. Consequently, there are certainly pressures to increase output in order to maximize profits. As a result, companies that are deemed necessary for the political economy are seemingly sanctioned to cut corners and operate with little fear of governmental regulation. In addition, some have argued how Canada’s present conservative government puts the public at increased risk for health disease as deregulation of Health Canada inspection and food industries ensue (Lee & Campbell 2006, n.p.). In this instance, Chopra was carrying out the explicit directives upon which he was initially hired. Despite his best efforts, the government punished his actions by terminating his employment five-years later, although stating that it was due to a “lack of progress” on a project (Buckert 2004, n.p.).
In Europe, one of the most notable legislative acts is the Public Interest Disclosure Act of 1998. Prior the sanctioning of the Act, citizens in the United Kingdom (UK) were not protected from wrongful termination. The lack of the much-needed legislation for whistleblowers is highlighted in many instances. Stanley Adams, a corporate whistleblower, revealed in 1973 that price fixing was occurring with the product line for vitamins at the Hoffman-La Roche facility in Basel, Switzerland. Hoffman-La Roche is a Swiss-based global health care company in the pharmaceutical industry throughout Europe and abroad. When Adams came forward, the European Economic Community forwarded his name to his employer and he was charged with espionage, theft and unauthorized disclosure. Facing a prison sentence for several decades, his wife tragically committed suicide after hearing the news (Mathiason 2001). Stanley Adams, however, ended up only spending a few months in prison. Given the lack of legislation in the UK, the Public Interest Disclosure Act was enacted. Up until this point in time, it is plausible that members of the public were fearful from coming forward and revealing dishonest or illegal behavior in the workplace. Some might interpret the late enactment of this law’s coming of age to be quite suggestive of capitalist society and state interests. Without a doubt, the Act is a useful piece of legislation for aiding workers within the community. Nevertheless, the UK is much older than its American and Canadian counterparts but yet it has failed to keep up with the rest of the working world in respect to legislation around whistleblowing. It might be argued that in the absence of such legislation, capitalism may have never formed to the extent to which it has. The Industrial Revolution was a period where technology, transportation and agriculture underwent profound changes in a short period in time. From the Enclosures Act in the twelfth century to what some have called the ‘second age of modernity’ (Beck 2000), it can be argued that this lack of legislation may have created, to some extent, passivity among law makers and the public for enabling sustainable channels for whistleblowing and proactive disclosure of information. The past cannot be changed—for better or for worse—although the mediums available to whistleblowers have greatly improved with quickening pace of technological change and communication.
Transparency and Heresy: Inciting Change through Struggle
The Internet has become a marvel of our time. Not only has it revolutionized the way the think and how we live, but also it has restructured our ability to share and disseminate knowledge. Until recently, whistleblowing efforts had been largely confined by technological scarcity that required tireless effort. With new rises in technological capacity throughout the twenty-first century, whistleblowing mediums continue to evolve and become more communalized. One example is WikiLeaks: an international organization that operates as an online vehicle for members of the public to leak surreptitious knowledge and
classified data. In late 2006, WikiLeaks made their website public and it has been a Mecca for intelligence enthusiasts, information activists and academics alike. The founder and director of the self-described not-for-profit medium is Julian Assange, a world-renowned hacker-activist from Australia. The WikiLeaks website offers a broad range of information that includes but is not limited to exposing: corrupt educational institutions, governmental secrecy and industrial fraud. Accordingly, governments and transnational conglomerates have paid close attention to their activities. This digital form of whistleblowing is unique in its approach as anyone with Internet access can make known private data with a simple click of a “mouse.” And many do. In 2008, one of the most injurious leaks originated out of a collection containing nearly 400,000 cables dubbed the “Iraq War Logs.” Among the cables were sets of documents pertaining to the death records of “insurgents,” “enemy combatants” and civilians. The intelligence also exposed how American soldiers in relation to the occupation of Iraq had killed 66,081 civilians since March 2003. This is the largest data leak in the history of the United States military (Spiegel 2010, n.p.).
Whistleblower Inception and Legal Deception
A whistleblowers audacity is key to revealing unscrupulous questions or facts. The decision a whistleblower makes when leaking sensitive information should never be taken lightly. In recent years, it is understood that when a person decides to make private data public, the outcomes can lead to incarceration, termination of employment and perilousness. The story of Chelsea Elizabeth Manning (previously named Bradley Edward at time of arrest), a private first class intelligence analyst of the United States Army, is one such example where commitment to reveal wrongdoing within government resulted in just that. In 2010, Manning was arrested for publishing more than 250,000 U.S. diplomatic cables and 500,000 military reports originating out of the Iraq (“The Iraq War Logs”) and Afghanistan (“The Afghanistan War Logs”) war. One of the most examined leaks among the cables was a controversial video that depicted the wrongful killing of eight citizens and two war correspondents from Reuters by the United States military. In the eighteen-minute video entitled “Bagdad Airstrike/Collateral Murder,” viewers witness military personnel execute innocent civilians in broad daylight using automatic weapons from an Apache helicopter. The justification for the killing was unadorned by American forces: their camera equipment was mistaken for automatic weapons (Cohen 2010, n.p.). In 2010, Manning was arrested and charged under a court martial while serving a tour in Iraq for suspicion of leaking classified materials to WikiLeaks. Manning was incarcerated for more than 1,000 days before being on trial. Oddly, the Rule for Court Martial (707a) requires that the “accused be brought to trial within 120 days of referral of charges or imposition of restraint.” Despite this, Manning was held under military orders, without trial, for over 1,000 days. On August 21, 2013, Manning was found guilty of espionage charges and sentenced to 35 years of confinement. Manning is currently being held at the United States Disciplinary Barracks at Fort Leavenworth, Kansas. The case of Chelsea Manning demonstrates forthright injustices within the federal policies and is detrimental to the historical purpose for which whistleblowing came about. The treatment of this type of political-whistleblowing highlights how legal frameworks can be overlooked and circumvented when “the facts” are in opposition to a legal regime. Importantly, the United Nations special reporter on torture has accused the US of cruel, inhuman and degrading treatment toward Manning (Méndez 2012, 76). Despite this, little has been done to improve her carceral condition. Moreover, those who kill innocent civilians overseas, and those who killed the reporters in the leaked film, face no harm or corollary for their actions. Perhaps the cases for the murderous soldiers were dismissed for being apart of “their job” or expected “collateral damage” that arises in war. In any case, a sense of injustice permeates the air.