Can Whistleblowers Still Create Societal Change?
Air Date: October 3, 2022
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. I’m delighted to welcome our guest today, Siri Nelson. She is the executive director at the National Whistleblower Center. Siri, thank you so much for joining me today.
NELSON: Hi. Thank you for having me. So happy to be here.
HEFFNER: Let me ask you about whistleblowers. What has changed about the act of whistleblowing now in 2022? Is it really the same that it’s always been that we think of whistleblowers, or should we think about them differently?
NELSON: Oh, wow. That’s a fantastic question. Well, you know, whistleblowers have always been the people who have the courage to speak up for what’s right. That hasn’t changed throughout time. How we refer to them though has changed. And I’m really proud to say that National Whistleblower Center has always had a big role to play in that. So whistleblowers in the past have been perceived in a very negative light, you know, where it’s like snitch, rat, tattletale. This is something that we’ve fought against on a cultural level, and we’ve been able to elevate whistleblowers to where they belong, which is as you know, heroes, courageous, people who are really saving the day as first responders. So it’s a great change to see happening.
HEFFNER: And I know your work is to elevate their importance to civil society and democratic rule. But is it fair to say that over these last decades the whistleblower has become more tainted or stigmatized?
NELSON: Well, I mean it really depends on which context you’re talking about. So I think whistleblowers are definitely always tainted when they are going against those who are in power. And so depending on how their disclosures can be used by the prevailing parties, you’re going to see attitudes about whistleblowers change. So when we saw the Ukraine whistleblower come out with concerns about what was going on in the current administration at the time, there was a lot of disparaging comments about whistleblowers. But when whistleblowers were coming forward about issues that had to do with, for example, corporate malfeasance and the Enron situation, they were more celebrated. Sharon Watkins was in fact named Time Person of the Year around the same time that she was revealed to be the whistleblower in the Enron scandal. So it really depends on who’s in charge and what the whistleblower’s blowing the whistle on.
HEFFNER: That that’s useful context. I also think that they can be stigmatized by their failure to speak up soon enough.
NELSON: It’s a double-edged sword. You make such a good point. I mean, people are stigmatized when they don’t speak up soon enough. They’re stigmatized when they speak up too early. People who blow the whistle too early are often called, or in the view of the public as too early are often called anxious. They’re called conspiracy theorists. A lot of times it’s difficult for them to find an attorney because attorneys don’t quite understand the issues that they’re revealing. We can look at, for example, the recent Uber files leak, where the whistleblower really did come forward with issues that I think, if we were in a totally different time wouldn’t have been as well understood. So yeah, we definitely…
HEFFNER: When you think of the history though, I mean, I think that there is certainly an art to it and there’s a substance to it in the sense of demonstrable evidence of wrongdoing or malfeasance at a level to impact a scale of society. And of course the classic example to me has always been The Insider. And you know, the whistleblower who came forward against the tobacco industry, and to your mind is that, for those listening who want to understand the derivation of whistleblowing, from a contemporary perspective is that the example that you would highlight most favorably representing kind of the whistleblower whose impact is on a whole strata of society?
NELSON: Well we really look at whistleblowers like Bradley Berkenfeld, I think is a great example of a whistleblower that has made major waves on a whole strata of society. So he was the whistleblower who worked in Swiss banking. And this goes to the question of when do you report? What kind of evidence do you provide? So he’s been widely criticized and in fact, failed, faced criminal penalties for things that he was involved in that he actually blew the whistle on. And a lot of people would believe that he blew the whistle too late. But the amount of information he was able to obtain because he stuck in the system and actually witnessed the violations that he then reported, enabled him to provide a great amount of information to regulators and to law enforcement in order to stop the pervasive, the pervasive use of hidden beneficiaries in Swiss banking. And so this actually completely changed the Swiss banking system. It’s really influenced the way global banking works. This influences the way that IRS has policed the ways in which criminals use foreign banks in order to conceal their proceeds of their crimes and engage in money laundering. So people like Bradley Birkenfeld, who don’t yet have movies about them, I think are, are really good examples. But another great example, for example, are the Theranos and WeWork whistleblowers. So they are the classic workers who are involved in an ambitious project and started to see things going wrong and spoke up. There’s a handful of whistleblowers that are involved in these cases and their stories are well documented on numerous documentaries. And I think their stories are important for people to watch, to understand contemporary whistleblowing in terms of the types of evidence that can be used, because we’re talking about emails, text messages, voice messages, videos, different things that weren’t available in the past.
HEFFNER: And your role at the Center is what, as it relates to, you know, whistleblowers who might be perspective whistle blowers, considering their options, assessing the damage that’s already been done, and possibly making a disclosure to a reporter or to a regulatory agency?
NELSON: Yeah. So my role is to help whistleblowers understand their rights, to advocate for future rights and to help whistleblowers get connected with attorneys. So anytime somebody reaches out to NWC with information about something they think might be going wrong at their workplace, or if they’re an analyst who have observed certain misinformation going on in the internet or certain things going on in the market that are concerning, I always refer them to our intake form. So our intake form will lead them to our referral system where they can get an attorney from the outside. NWC doesn’t represent any whistleblowers directly. We just encourage them to understand their rights. So my role is mostly in educating the public about the ability to blow the whistle, what they should do, when they should take action, and the best practices of whistleblowing. We do that in a large part through celebrating National Whistleblower Day every year on July 30th. But we also engage in so many conferences and seminars where we talk about the best practices, which are anti-retaliation, anonymity, and reward. So that’s what I spend most time at NWC working on.
HEFFNER: And when I was referring to the example of the tobacco or cigarette industry, you know, I’ve long stated that I’ve felt that the social media companies represented the carcinogens to the mind that those tobacco entities represented for the lungs. Or the cost of doing business was to injure your lungs and, you know, impair your life. And I’ve always made the direct link from that to what the social media companies did, because to me, a lot of the disinformation and the amplification of disinformation and the profit-making associated with that disinformation was perpetuating a cycle of carcinogens for the mind basically. I mean, do you look at it that way?
NELSON: Well, that’s a very interesting take, and I have seen several parallels between the way the tobacco industry has been regulated and the way we propose the tech industry to be regulated. One of the major issues that we’ve seen here at National Whistleblower Center is that getting enough information about what’s happening inside of these tech industry companies that are having these black box algorithms is incredibly difficult because they wield non-disclosure agreements and fear mongering about what might happen if someone speaks up. So, one of the missions that we have is to help tech industry workers understand that non-disclosure agreements are not agreements that can bar you from communicating with the government when you have concerns about a violation of a law. And that’s really important.
HEFFNER: Look, do you look at whistleblowing in one industry differently than the other industries in the way that whistleblowing transpires?
NELSON: Absolutely, you know, different professionals will have different approaches to things. So if you’re interacting with someone who comes from a highly technical profession, they may have some more highly technical information that they’d like to disclose. When you’re looking at government officials who want to blow the whistle, or employees that want to blow the whistle, they have to go through a different system. So a lot of the technicalities are different, based on the field that they’re in. Also understanding the role of a whistleblower is different depending on the field. So if you have somebody in COVID-19, for example, who is blowing the whistle about health and safety issues that are affecting the public, that’s different than somebody who currently is willing to blow the whistle on cryptocurrency scams, for example. So we look at those industries differently. We try to target each group on their own basis and help them understand how whistleblowing applies to very unique area. During this year’s National Whistleblower Day we had a great conversation with Alfred Brownell, who is an environmental defender, and he’s won awards for the work he’s done in Liberia. And I asked him, do you believe that environmental defenders are whistleblowers? And he said, yes. And so that was a really important statement to hear from him, because it’s important that people understand that when they’re blowing the whistle about climate violations and issues around wildlife trafficking violations, they too are whistleblowers and need laws that protect their right to blow the whistle.
HEFFNER: You stated Siri, the importance of that day to celebrate whistleblowers. Beyond a single regulated holiday, there are clearly laws that you would suggest, or best practices of the government to, and the corporate world too, to invite the kind of scrutiny that whistleblowers provide. And my question to you is what are the frameworks of that not in place in American society or globally now that you would like to see implemented?
NELSON: Yeah. Oh, that’s a great question. Thank you. Absolutely. So I mentioned the best practices of anonymity, anti-retaliation, and rewards. And we see that we have these laws in the existence of the United States that were created by the Dodd-Frank Act, which was actually in response to corporate issues and corporate malfeasance that was going on in the early, like beginning of the 20, 21st century, where we saw like our recession, the collapse in 2008. And they wanted to, Congress wanted to make sure that public and private industries knew that they had to report to investors accurately. And they couldn’t just say anything to try and get people’s money. So these laws protect whistleblowers and allow whistleblowers to report to the Securities and Exchange Commission and the Commodities Future Trading Commission anonymously. So they can use an attorney to report anonymously, and then they can also report and get anti-retaliation protections after they report. So if they’re retaliated against after reporting, they can get protections that let companies know that you can’t retaliate against somebody for speaking up about violations. And that finally, they allow whistleblowers to get rewards when they help those agencies obtain sanctions. And so, these three elements are the keys to what has made these agencies’ programs successful. So the SEC program is known all around the world. It’s obtained billions of dollars for U.S. government and for taxpayers. It’s helped protect investors, and it’s given millions to reward those who have helped with these enforcement efforts. This program is also available to anyone around the world, even if what they’re reporting didn’t happen in the United States, and even when they aren’t in the United States or a U.S. citizen. So it’s a really impactful program that will have a global effect as years go on. What we encourage is for every state, every country, every single area of our society that wants to have an effective whistleblower program, to look at the SEC program and adopt the same strategies. Allow people to report anonymously, make sure they’re protected from retaliation and provide them with some sort of incentive or reward when they are able to help effect the type of change that that whistleblower program is designed to create.
So this is something that we’ve been able to get creative with. I’ve spoken with people who have questions about how do you, you know, implement this on a government level. How can you incentivize government workers to come forward? What kind of rewards can we give them? And we’ve talked about ideas like grade changes, making sure that when people blow the whistle on something and it helps the federal government or the state government not spend money and be safe from being victimized by fraud, that employee will get a grade upgrade automatically. There you go. And it’s something that we’ve seen in the SEC program, really help incentivize whistleblowers to come forward when they know that they aren’t going to be bullied, and if they are bullied, they’re protected and if they are helpful, they’ll be rewarded. So, that’s what we advocate for.
HEFFNER: Is part of the problem in today’s culture that a lot of the corrupt acts are occurring in broad daylight? And if that is in fact the case, I don’t want to say it negates the value of the whistleblower, but in a sense, it diminishes the potential full impact of that whistle blower.
NELSON: Hmm, well, I mean, that’s a very interesting statement. I think lot of the corrupt acts that are occurring are happening in secret especially when it comes down to financial crime and violations of climate protections and human rights violations. So we see a lot of secret crime continuing to occur. But when it comes to things that are ostensibly happening in the public out in the open, one of the biggest challenges is collecting effective evidence to actually hold the wrongdoer accountable. So you can do something out in the open, but without actually having things like text messages about planning, and we can see that with the January 6th hearing, it happened out in the open, but we see that the most powerful pieces of evidence come from insiders, conversations you know, that happen behind closed doors, text messages, emails, things that are currently being deleted, that whistleblowers come into play and are able to reveal, even early on when the Capitol Police was, the lawyers revealed that the Capitol Police was not fairly using their law enforcement powers, and was actually strategizing only to target anti-Trump ralliers, not pro-Trump ralliers who were going to break into the Capitol.
HEFFNER: I hear what you’re saying, and I appreciate you find what I said interesting, or worth considering. And, maybe I don’t mean the word corruption as much as inequity, inequitable, unsustainable status quo, a certain way the world works that, you know, yes there are profound investigations like that into Cambridge Analytica that demonstrated not a single act of abuse, but people’s privacy being violated. And then their data being used to run elections and run software to appeal to voters. I mean, that is at a global scale. If you watch the Netflix documentary that guides you through David Carroll’s journey, who was a guest on our program. Or if you see the recent Facebook whistleblower who came out. And I hear you and them on the importance of whistleblowing and yet I think a lot of the corruption that was exposed from the past presidential administration you know, there, there were kind of reporting, there was reporting that could be on par with Watergate once a month.
And it didn’t really turn the dial in terms of an anti-corruption legislative agenda. Now, there has been a turn of tide in the governance of that chamber in 2016 and ‘17, it was the Republicans, the Democrats won in 2018, came back into power and could have enacted some significant anti-corruption legislation of the kind that was conceived post-Watergate. But that never happened. And so when I say it’s occurring in broad daylight, you have a potential presidential candidate who violated the Emoluments Clause, which is unconstitutional blatantly, was never considered by the Supreme Court or any, you know, legal body that could reverse it. And you have that same presidential contender contemplating a run for president again, who would be in office violating the Emoluments Clause again. And so that’s why I say on this, on this, on some level, the corruption is so blatant and unmistakable, and our institutions of government have not responded.
NELSON: Okay. So I think, I think I understand a little better where you’re headed. But the question you’re asking seems to go more to, are we desensitized to corruption to the point that any information would not motivate us to do anything to address that corruption?
HEFFNER: Correct. Correct. That is the truth.
NELSON: And then therefore our whistleblower is irrelevant because the role of the whistleblower is to bring information forward. And I think,
HEFFNER: and, you know, I don’t think that…
NELSON: Hey, if you did, I wouldn’t judge you (laughs)
HEFFNER: I think the first part of conversation proves not, but please. Yeah.
NELSON: It’s an important thing to contemplate because I think we can, we can, we can use that question to understand why there isn’t more action being taken. And I think that’s the, at the heart of, of what you’re hypothesizing here. If we are so desensitized against corruption, why should anybody speak up and risk anything to reveal the truth when we can see that the truth doesn’t really count for anything? And that’s a really important point. It goes to whistleblowers. What’s been proven empirically about whistleblowers, which is that what motivates them the most is to see change happen. Knowing that they’ll get a reward, even if change doesn’t happen is a good safety blanket to use. But ultimately even if they do get a reward for what they did, if the issue that they’re trying to address isn’t changed, they still feel unsatisfied and oftentimes will continue to take action based on what they’ve been wanting to blow the whistle about.
Whistleblowers are incredibly tenacious, and that is something that makes whistleblowers even more important now than ever. Because in a time when we may be desensitized against corruption, whistleblowers, remind us that that is an unacceptable stance. They fight literally through their lives to prove and show that what they’re raising concerns about do matter. That the values that we stand for in society, like transparency, fairness, accountability, making sure everyone’s playing by the same rules, protecting our environment, stopping violence, all of these things are the things that whistleblower stand for, and they will do it no matter how desensitized the rest of society is. And that is the incredible thing about whistleblowers and why I’m so proud to work with them every day.
HEFFNER: I hear you. You were hearing me correctly in my hypothesis, and yet I agree with your declaration just now and still hold onto that hypothesis and that very deep-abiding feeling of structural inequities desensitizing people, but maybe even those government, whether it’s certain branches of government or institutions that are incapable of emphasizing the need for anti-corruption measures. But I also was referring to it in the economy. So you had the example of the Emoluments Clause during the Trump Administration, but I’ve also thought about this a lot in terms of an unequal, inequitable economy where it’s not surprising that Uber is ripping off its drivers, that it’s, you know, constructing an algorithm to rip-off more and more. Or that it’s not surprising that Uber would seek advantage in the regulatory schemes in other countries and in the United States to get permission to operate. That’s not surprising. And, and what is most problematic and also unsurprising is that we have decentralize, we have centralized wealth in this country, you know, and I have called it after reviewing a book by a USA Today reporter who wrote a book of this name, “Cannibal Capitalism.” I mean, that is not surprising that we, you know, it’s a rat race and we eat our own so to speak. That is just not surprising.
NELSON: Well, just because it’s not surprising doesn’t mean it’s not illegal. And so going to the Uber files whistleblower. I’m not his attorney. I’m just, I don’t have any clients. I’m an executive director, but I am going to say this about its case. He has so much evidence about a wealth of violations that if U.S. regulators were interested and had the political will to take enforcement actions against Uber, there would be grounds for it, as well as foreign officials having grounds for taking action against Uber.
HEFFNER: Understood, understood. I suppose my, my point maybe more directly articulated was just that, that the economy is, you know, in separate from those violations, those precise violations, the, the economy is one that incentivizes you know, the companies to eat each other, basically, you know, until there are companies that are too big to fail. And we know that how they avoided scrutiny during the 2007 great recession. So I guess my, my point is, doesn’t it all come back to antitrust because this is the climate where you incentivize growth at the elimination of economic, at the exclusion of economic mobility, at the exclusion of you know, diverse enterprise and as a result of the refusal to prosecute antitrust violations over the last half century, we are where we are. Cannibal Capitalism.
NELSON: Mm-Hmm. I agree very much with the reality that antitrust issues impact our democracy and our ability to control corruption and not seeing those antitrust protections being advanced and improved as we’re dealing with contemporary economies that are increasingly globalized. It shows there’s a lack of political will. And I think that has to do with corporate lobbying and the money in DC that is controlling and influencing the decisionmakers who are responsible for regulating industry. And whistleblowers are the ones who are relentlessly pushing regulators to do something. Because they’re coming forward with so many tips and agencies are receiving those tips and failing to take action. And there’s going to be a tipping point just like there was in 2008 where there’s a major issue and the regulator will fail to take action on it. And because of the media storm that comes out of that failure, there will be change. We haven’t gotten to that point yet, which is quite unfortunate. But one thing that I would advise is that senators continue to consider whistleblower protections in any law that’s designed to control the most important aspects of our lives. And that includes our economy. There are currently antitrust bills before Congress and they need to include whistleblower protections that are on par with the best practices that we see at the Securities and Exchange Commission program. This is just the fact.
HEFFNER: Siri, Siri Nelson, executive director of the National Whistleblower Center, I thank you for a vigorous and spirited conversation today. Thank you so much.
NELSON: Thank you.
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