Whistleblowing in America, 2020

Whistleblowing

Thanks to technology and social media, calling out misbehavior and misconduct has never been easier. It’s also never been harder.

Edward Snowden. Chelsea Manning. Reality Winner. Three American names familiar the world over, for leaking classified information to sites like WikiLeaks and media organizations like The Intercept. These names and the fallout from their activities popularized the term ‘whistleblower,’ but according to Mark Zaid, the foremost national security lawyer in the United States, the descriptor should be used sparingly–and doesn’t apply to any of them.

Zaid, who’s had a storied career defending U.S. government whistleblowers, taking on high-profile Freedom of Information Act cases, and suing multiple foreign governments including those of Libya, the Republic of Georgia, and Equatorial Guinea, didn’t get to where he is by mincing his words. One of his primary tenets when it comes to leaking classified information is: don’t do it.

“In the national security context, when we’re talking about classified information, I do not consider anyone a whistleblower if they revealed classified information without authorization,” he says. This is because in the national security context specifically, doing so can damage or invalidate the individual’s legal protection as a whistleblower.

The U.S. has some of the strongest legislation encouraging people to come forward with allegations of high-level misconduct, including the Whistleblower Protection Act and the Intelligence Community Whistleblower Protection Act. Yet, in the past four years, there’s been an outpouring of misinformation and disinformation from Trump and his allies directed at both Zaid and whistleblowers in general–thereby altering public perception of them.

It’s easy to understand why bad actors might want to delegitimize Zaid’s work. He represented the whistleblower who alleged that Trump had pressured Ukraine to look into Joe Biden and son Hunter. The allegations eventually led to the president’s impeachment. But the campaign to cast doubt on the verity of whistleblowers’ claims has forced Zaid to turn to an unlikely platform for damage control–Twitter.

Though firmly non-partisan, having represented individuals on both sides of the U.S. political divide, Zaid doesn’t shy away from expressing his opinions and clapping back at willful disinformation when necessary. He’s become quite the prolific Tweeter since joining the platform in 2013.

That said, Zaid is careful to emphasize that his experience with social media thus far has been a double-edged sword. The reach of social media makes whistleblowing more impactful, but right-leaning account-holders are often successful in counteracting the effects of whistleblowers’ attempts to inform the public.

“[Social media] has enabled whistleblowers to be able to effectively put out their message, and for us to be able to facilitate our representation of that whistleblower and get out that message,” he says. “But it has also served as an unfortunate effective tool to counter the whistleblower and spread malicious attacks.”

The moral dichotomy of technology

Late last year, Fox News anchor Laura Ingraham reported on the show that Zaid had previously represented Democratic party politicians Hilary Clinton and Chuck Schumer. Both Fox and Ingraham are aligned with the Republican party, also known as the GOP.

Contrary to what Ingraham claimed, Zaid had never represented either party. His colleague Andrew Bakaj had interned for them during his college years, almost two decades earlier. Zaid took to Twitter the day following the report, composing a 13-part thread unequivocally debunking the accusations.

“That alone caused her to apologize on air the next night, and a whole slew of news stories just about that fact. So clearly, it was an effective tool to counter these factual inaccuracies,” Zaid says.

He adds that he doesn’t think it was done on purpose–he suspects someone just got sloppy when fact-checking Ingraham’s report. The intention behind the report, however, was clear: to paint Zaid as a left-wing activist and delegitimize whistleblowers.

The fragmentation of the digital media landscape could be part and parcel of this problem. With so many small organizations competing for readership and scoops, and a few seemingly-legitimate actors actively publishing fake news, it’s fallen to the likes of Google, Facebook, and Twitter to suppress the worst of the misinformation.

Of course, Twitter isn’t a media platform, and it still fails to adequately represent the ideals of the Fourth Estate–ideals that have long characterized the role of the press in society. Apart from its right-leaning users, accounts with actual malicious intent have also sprouted on Twitter, speaking to a far-right audience that actively absorbs and spreads disinformation.

Zaid’s primary concerns rest with how these accounts may be affecting the perception of whistleblowers. Additionally, his team discovered during the Ukraine whistleblower case that some of the accounts spreading disinformation and smear campaigns could in reality be hostile foreign governments masquerading as Americans.

The demographic of the social media platform is part of what makes it so powerful, though dangerously radical at times. Twitter, Zaid says, is his weapon of choice because it offers the ability to reach the majority of age groups across the spectrum.

“[Twitter] has been both a boon and a curse,” he adds.

In another technology integration, Zaid’s law practice has set up a route for whistleblowers to contact him securely through Tor. Tor (short for The Onion Router) is an Internet privacy tool that bounces users’ browsing data and location information through a network of computers around the world called ‘relays,’ making it almost impossible to identify data sources or destinations, or user locations.

While it’s a resource used widely by journalists, whistleblowers, and normal users who prioritize privacy, it’s also gained an unsavory reputation as a shield for criminal activity. As such, using Tor was a practical decision, but it poses other problems.

‘There’s good and bad things about it […] It’s still not used very widely within most of the communities I deal with, so it takes someone additional time and understanding to engage in, and I’m sure it probably turned some people off. It turns me off, quite frankly,” he admits.

Even in terms of secure communication services such as HushMail, server locations may render them dangerously fallible. Zaid recalls the high-profile 2010 case of former NSA employee Thomas Drake, who leaked classified documents via encrypted email service HushMail to a reporter. Ultimately, the FBI managed to subpoena Drake’s email archives through a court order in Canada, where HushMail’s servers are based, leading to Drake’s eventual indictment.

In short, technology poses a unique catch-22 in Zaid’s line of work. While services like HushMail and Tor are useful and much-needed tools offering some amount of safety, they are far from easy to use or invulnerable.

Times are changing

In the past eight years or so, the media seems to have been awash with an astonishing number of high-profile whistleblowing cases, whether in leaks to the press or WikiLeaks, or in court. However, this might not be the case in reality.

“I don’t get the sense that there are more whistleblowers now than there were previously,” Zaid muses. “I think what has changed is that many of the whistleblowers have been [accusing] very senior level people in the U.S. government, including the President of the United States.”

The anomaly, he says, is that whistleblowers are both higher-ranking officials, and cases involve the White House or the President directly, something he says he had never experienced before the Trump administration. The explosive nature of the allegations, combined with the identities of those accused, has served to attract more attention to such cases.

Zaid’s work in this space is unique, and made possible because of strong U.S. legislation encouraging people to come forward. In practice, however, he says public perception of whistleblowing can cut both ways, and has dimmed since the arrival of the Trump administration.

“At least on paper, encouraging whistleblowers is something that the United States stands for, I think,” says Zaid. “Hopefully, one day we’ll be able to get closer to where it’s actually in practice, but Trump has set us steps back from that, and the question is going to be, how far back?”

Zaid is fighting an uphill battle against attempts to discredit his work and his clients. He’s had the dubious honor of being personally name-checked by the President at a campaign rally, an event which later saw him receive death threats from Trump supporters. But he’s had remarkable success in using Twitter to counter smear campaigns, and if anything, his resorting to social media may serve to highlight failings in the current media landscape.

“I think there will always be a role for whistleblowers. And it should be a role that is applauded rather than condemned,” he says. “The system of government that that individual is associated with will make that distinction as to whether or not they’re applauded or condemned–and so will society around them.”

Mark Zaid’s best practices for would-be whistleblowers

  • It’s inadvisable to remove classified documents from the workplace, particularly in the national security context, as it may leave one open to prosecution.
  • Similarly, try not to violate organizational rules (such as emailing work documents to a personal email address). Whistleblowers are almost always bound to endure attempts to discredit them, and knowingly breaking the rules could result in what Zaid calls “justifiable retaliation.”
  • Most importantly, one should talk to someone who is experienced, knowledgeable, and in a position to give the would-be whistleblower advice on how to take things forward in their jurisdiction. And that someone should probably be a lawyer rather than a journalist. This is because the anonymity of journalists and their sources often isn’t protected by law–whistleblowing in this manner puts both parties at risk.

Originally published in Jumpstart Magazine Issue 31 as ‘Blowing the Whistle in America, 2020’

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Nayantara Bhat
Nayantara is Jumpstart's Digital Editor.

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