The Trump administration is currently giving all federal workers the same retaliatory treatment traditionally reserved for whistleblowers and media sources. Amidst the carnage and chaos, investigative reporters are working hard to keep the public informed about the acts of their government. To do so, they rely heavily on leaks in the public interest.
At the Whistleblower & Source Protection Program (WHISPeR) at ExposeFacts, our attorneys have decades of experience defending whistleblowers and media sources against the most severe retaliation the government can levy against them. If you are within the government and thinking about disclosing fraud, waste, abuse, gross waste or mismanagement or lawbreaking to the media, here are our top 5 tips to stay safe. There is a way to speak out as safely as possible, but it takes caution and strategy. These tips are not legal advice and not a substitute for speaking to an attorney.
And, thank you to all the public servants who are considering informing the public about government waste, fraud, abuse, mismanagement, dangers to public health and safety, and lawbreaking. Our country needs your bravery and commitment to democratic principles of government accountability, transparency, and the free press.
1. Know Your Rights and The Risks
Ideally, consult an experienced attorney about your rights and the risks of speaking to the media – before you contact the press. At WHISPeR, we advise media sources pro bono. Whistleblower protection laws vary widely by jurisdiction and your particular agency (those in national security, law enforcement, and the intelligence community have different rules). Risks of speaking out depend on your individual employment situation, whether protected or classified information is involved, and how you intend to blow the whistle.
While whistleblowing and speaking to the media are protected by statutory law, the First Amendment, and long-standing Supreme Court precedent, whistleblowers and media sources still face enormous risk to their careers and sometimes risk criminal prosecution for exposing institutional misconduct – even through lawful channels. The best way to know your individual risk assessment and the potential consequences of your actions is to speak with an attorney before contacting the media. Too many come to us after they’ve made a disclosure that landed them in the government’s crosshairs.
2. Use Personal Devices and Encryption, But Don’t Count on Anonymity
It is best to conduct any whistleblowing activity using personal devices, rather than devices from your employer. You should also protect your anonymity by using the strongest possible encryption. Signal is our top pick because it’s easy to install and use. A Tor Browser is another easy way to keep your internet usage more private. Other good resources include TAILS, encrypted e-mail, and SecureDrop.
However, secret surveillance capabilities of the most powerful governments, including the U.S., make it inadvisable to assume that you will be able to fully maintain your anonymity. Even just the metadata of communications (not the content) has been used to retaliate and criminally prosecute government sources. Both journalists and sources can make mistakes in operational security. And, the government has wielded a source’s use of encryption as evidence of nefarious intent and obstruction of justice.
Bottom line: protect your anonymity using encryption, but prepare for an outcome where you are not able to maintain your anonymity.
3. Choose Where to Leak Strategically and Agree on Ground Rules
Carefully select which journalist and media outlet to make your disclosure. Many outlets promise to prioritize source protection, but then make decisions that have resulted in retaliation and even criminal prosecution of their sources. Working with a journalist who incorporates source protection into their work is safest. Sources and journalists should agree to ground rules before a source makes disclosures, such as if and how the source will be quoted and anonymized, and whether the source will be speaking or providing documents on the record, on background, on deep background, or off the record. Attorneys (like those at WHISPeR) can help make sure journalists and sources have a mutual understanding of the ground rules.
4. Prepare your Personal and Professional Life
Before speaking to the media, be sure to obtain your current pay and employment records. Keep a copy of anything you may need in the event your access to employment systems is abruptly cut off. Keep your resume and job contacts current in the event of job loss, and keep copies of your performance appraisals.
Prepare your finances if you can. Often whistleblowers do not have capacity to line up months of savings or their disclosures are too urgent. But, it is advisable to be in the best possible financial position prior to making a disclosure because defending against retaliation – especially criminal prosecution – can be expensive, even financially ruinous. It is also important to immediately access federal unemployment benefits (sometimes called “unemployment insurance”) – which provides temporary cash payments to eligible workers who are unemployed through no fault of their own.
Inform your close support network of your intentions, particularly your spouse or family. Retaliation can cause immense stress and anxiety for individuals, and financial and emotional consequences for family members who need to support whistleblowers. You may not be able to disclose everything about your whistleblowing, particularly if it involves classified information. But, if you can discuss your plans with your spouse and innermost circle, they will be better able to support you.
5. There is safety in numbers
Two sources are better than one. Three sources are even better. So many sources that one cannot be effectively identified and targeted is the best option. Retaliators depend upon the ability to single-out and isolate a whistleblower or media source. They often pathologize the one canary in the coalmine, fueling retaliation by scapegoating the whistleblower rather than the misconduct the whistleblower raised or disclosed. Speaking to the media as a group can help neutralize this tactic. Even better, whistleblowers corroborate each other’s stories and back each other up in the face of retaliatory attempts to discredit them.