Why Public Whistleblowers?

We continue to learn about serious wrongdoings on the part of organizations. We discover that corporations are making money at our expense. Or state institutions are corrupt. We discover that these organizations’ practices impact our privacy rights, our health, our children’s safety and our democracies. The information does not always come from the sources we expect: the investigative journalists, regulators or law enforcement officials. Whistleblowers bring these stories to light in many cases: ordinary workers come forward with information, often risking a lot in doing so. In the years to come, there will be more overreaches by organizations wielding unchecked power. There will be more whistleblowers.

Whistleblowing is having a moment. ‘Now is the time to embrace whistleblowers’, declared the Financial Times in response to the rise of fraud and corruption during the height of the COVID-19 pandemic. ‘Unlawful activities and abuse of law may occur in any organization, whether private or public, big or small’, warned the European Commission in 2018, ‘and if they are not addressed, it can result in serious harm to the public interest.’ Workers, the statement went on, are ‘often the first to know about such occurrences and are, therefore, in a privileged position to inform those who can address the problem’. Whistleblowers, it seems, represent one of the last bastions of safety against our descent into exploitation by tech-fuelled obfuscation on the part of powerful institutions. When organizations are determined to conceal what they are really up to, only workers can show us what is actually going on. The Organisation for Economic Co-operation and Development (OECD) and the United Nations’ Principles for Responsible Investment call for employers and governments to heed whistleblowers. Politicians pronounce whistleblowing a crucial mechanism for safeguarding our democratic institutions, consumer rights and safety at a time when organizational secrecy is on the rise.

Today, the loud calls are being heeded. These sentiments led to the most comprehensive set of whistleblowing laws ever seen across the globe: the EU Whistleblowing Directive of 2019.¹ This focus on whistleblowing is shared by various US agencies. While weaker than its European counterpart, the federal Whistleblower Protection Act remains, on paper at least, ‘committed to protecting current and former Federal employees and applicants for employment from interference and retaliation when making protected disclosures’. From Albania to Zambia, every year sees new countries join the list of nations claiming dedicated whistleblower protections.

A flurry of expert activity has resulted from this upsurge in protection for whistleblowers. Those looking for a webinar on whistleblower protection will not have to look too far. I count about two per week.

This is my area. A professor at a business school, I research whistleblowing. By this stage of my engagement with the subject, I have examined most of the angles: why people do it, what happens to them, why retaliation may be an outcome and, if it is, whether the whistleblower can find work again. With colleagues I have studied how much money whistleblowing costs, the perspectives of managers who receive disclosures from whistleblowers and how employers can stop whistleblowing from getting serious before everyone suffers. After writing two books on this topic, publishing peer-reviewed articles and giving speeches on panels, webinars and at conferences, I remain frustrated. Something is missing.

Amid all the recent activity, there is something that cannot be ignored: a narrowness of focus – people seem concerned only with improving the official channels for whistleblowing. The basic idea is that we can best protect whistleblowers by creating smoother pathways for them to disclose their information. These pathways make up the official channels: the speak-up system, the outside regulator’s hotline or the government department’s disclosure procedure. Workers should know where to go when they speak up: which speak-up manager or hotline number to call. They should be provided with the latest high-tech solution, ensuring confidentiality and secure case management. And if these routes seem dangerous because the other end of the hotline sits on the desk of a manager who knows all about the fraud, then the worker should know which independent, external recipient will take their information, protect their identity and make sure they are safe. The worker should know which outside regulator to call, which ombudsperson to email. Through all of this, the law provides a safety net, a comforting backdrop. If the whistleblower’s pathway to disclosure ends up being less than smooth – if they get push back, harassment, demotion, threat of dismissal or any other kind of retaliation for having spoken up – then they have a right under law to claim a remedy for the reprisals.

Smooth pathways through official channels, it seems, represent the solution whistleblowers require. And if there is no pathway – if the employer has not bothered putting whistleblowing systems in place – then the fault lies with management.² They are mandated under law and, as such, they have failed in their obligations. The basic idea we all seem to be working with is that, done right, the official channels will enable effective whistleblowing disclosures and act as shields for those making them.

This set-up has been described as institutionalized whistleblowing. Institutionalized whistleblowing is about keeping it all within the system. Of course, the pathways can be rocky: retaliation is not uncommon and speak-up arrangements can be flawed, but the overall sentiment is that whistleblowing works best when a worker makes a disclosure using internal reporting mechanisms. Thus, work continues: perfecting the channels, improving legal protections, incentivizing people to speak up, designing clearer processes and more impressive technology.

I am part of this world. With colleagues, I interviewed speak-up recipients and wrote a book giving managers ideas about what it is like to operate those channels, so they can make better ones. We shared our findings as widely as we could, helping organizations design systems. I write opinion pieces demanding that this legal loophole is closed, or that legislation is strengthened. I spoke in Parliament trying to convince politicians to close these loopholes and strengthen these provisions, backing my appeals by citing all the research. Invited to submit submissions to governments when they propose new laws, I put time aside and off I go. I do the work, with my colleagues, of shoring up institutions. The work is niche, but these changes are important. Yet, still, there is something we continue to ignore.

Every few weeks, I receive an email from another whistleblower caught in a difficult situation. The law has failed them. The speak-up system was used against them. The employer is simply ignoring things that they are supposed to be doing. The official channels are not working: they are not even acknowledged by managers, never mind followed. With all my research, the whistleblowers ask, what do I advise that they should do now? Beyond pointing to useful ‘how to whistleblow’ guides provided by support groups and giving the number of a legal advice helpline, I don’t know what to tell these people. At this point in my career, to be honest, I am unsure as to what to tell myself, hence, this book.

Of course, the official answer is that we need better laws and more speak-up arrangements. Year after year, however, I see how many employers intent on silencing whistleblowers simply achieve their aims through their increased clout, legal power and money, disregarding even the strongest laws. The point is not that no employer can tolerate workers speaking up. Many do and some actively encourage it. This is all to the good. But sometimes, this doesn’t happen. Sometimes employers can become entrenched, defensive and determined to maintain silence.

When official channels fail, and they do fail, workers are left exposed, vulnerable and tempted to abandon their disclosures of serious wrongdoing. For this group, it is not a question of merely opting out. If you have been named in public as a whistleblower and are now without work, chances are high that you will find yourself blacklisted in your sector. For this group, the situation has simply gone too far to allow them to turn back.

This category of whistleblower does not get much attention in the research, despite a small number of high-profile cases appearing in films, books and newspaper articles. To start the conversation, it is helpful for us to use the term ‘public whistleblower’, which we can define as someone reporting deep-seated, systemic problems, named publicly and subject to reprisals by their employer. This book begins with the principle that the public whistleblower is distinct and requires attention.

Public whistleblowers need to find others who are located outside the organization and, often, outside the official channels: to listen to them, to offer support and to help them act. Ideally, these others will have influence. They will know how to use it. Partners come in many forms: lawyers, journalists, activists and politicians. Working with knowledgeable and experienced partners is often the only realistic way of countering an employer bent on retaliating. And yet we know very little about this side of whistleblowing. Compared with the thousands of expert hours and millions of euros spent on perfecting the official channels, the effort spent on this aspect of worker disclosures is negligible. People, I am sure, are aware that supporters help. But there is nothing formal, nothing explicit – few details of how, why and with whom this all-important whistleblower support emerges. Academic research is likewise sparse.³

This was on my mind as I watched scenarios play out over the last few years – the Facebook insider, the healthcare workers speaking up while fighting COVID-19, the Amazon warehouse whistleblowers and the college graduates who helped to bring down Theranos. I saw how all were forced to go outside the official channels. And it was clear to me that, despite the differences between these cases, there are patterns. When a public whistleblower’s claim is taken up by helpful others, things get easier. The whistleblower gains a platform, courtesy of these others. They get some credibility. Their voice is amplified. More than this, people speaking up can get a sense of psychological relief, of stress partially alleviated, of feeling that they are not the only ones seeing this terrible thing and not the only ones interested in speaking up about it.

This support is powerful in terms of helping a whistleblower. But it is also rare. Most public whistleblowers have a difficult time getting journalists to take an interest in their case.⁴ Whistleblowers who do not receive help often end up at the mercy of a counter-narrative designed by their former employer using their influence with the media and opinion-shapers – a narrative that plays down the wrongdoing and casts doubt on the whistleblower’s character and their credibility. For the whistleblower experiencing reprisals, the stakes get higher when they speak publicly. Stress builds and money worries accumulate with each legal bill that arrives. And we must not forget that, despite whistleblowing having a moment, despite the Financial Times’ calls to ‘embrace’ this group, meaningful help can be hard to come by. Certainly, it is fashionable today to support whistleblowers, but this support is often light touch – a post on social media celebrating their bravery, a thumbs up to the news of an important disclosure. But practical help involving actual work on the part of the helper? This is more elusive. A sense of ambivalence still persists around public whistleblowers. Even would-be supporters, well-meaning activists and journalists can find themselves unsure whether to support this lone figure, especially when established employers publicly call them liars. For a whistleblower, gaining the kind of support they need is fraught and unpredictable. And there are nuances: those who do help often have some kind of shared agenda with the whistleblower, maybe the thing they are disclosing provides evidence for a story, a political campaign or a protest. The alliance can be short-lived, lasting as long as it is useful to the supporter, with the well-being of the whistleblower an afterthought. The result is that heroic efforts to speak truth to power often result in nothing at all, perhaps just a few lines in a local newspaper or a socials post that evaporates into the ether after a few shares.

How does a whistleblower forced outside the official channels come to be involved with real, effective supporters? How do whistleblowers make the meaningful connections often needed? Getting help is very difficult in practice, but getting help is transformative both for surviving the experience and for effectively disclosing information to a public that needs to know. And yet these facts are overlooked again and again. Silence persists in research by business ethics and legal scholars, in media commentary on whistleblowing, in popular books and by politicians claiming to be whistleblower champions.⁵ Why?

Perhaps it is not comfortable to acknowledge that the institutional routes can fail: to think about different ways forward. We like to think that the current system will eventually work; it merely requires some tweaking. Many consultants, lawyers and academics have invested lots of time and money in this task of tweaking. They don’t want to hear that they were too focused on just a small part of a bigger problem. More than this, what does it actually mean to talk about organizing disruption to the system – outside the official channels? To examine patterns, to develop strategies that cannot be ‘institutionalized’ because they are, by their nature, always outside the institution? To ask questions that might lead to something like a blueprint to dismantle the ordered status quo? Surely, therein lies chaos. Perhaps we shouldn’t be surprised that this kind of work is not the activity of choice for experts.

I began my efforts to ask these questions in 2014, publishing an opinion piece in The Atlantic. Conscious of the format, I used my best opening. ‘Think whistleblowing is a matter of telling the truth?’ it began. ‘Think again!’ I was reflecting on all I had learned from studying truth-tellers in financial services, speaking up about what was going wrong prior to the financial crisis of 2008. It really did seem like ‘success’ was arbitrary.⁶ The odds were stacked against banking whistleblowers, and those that prevailed, it seemed to me, only did so through fortuitous circumstances. I went on to declare that ‘“successful” whistleblowing, in which the protagonist actually manages to make themselves heard in the media and get the support of the public, is a matter of luck’. The point was bolstered with 700 words worth of examples from my financial sector whistleblowing cases. The piece insisted that successful whistleblowers are not the ones with the most shocking truths, but rather those whose ‘stories match up with what the media are excited about, what the public are angry about, or what the politicians can use for political capital at that particular time. Rather depressingly, therefore’, I concluded, ‘the truth is a matter of trends. Whistleblowing remains something of a lottery … people’s lives – and their disclosures – are left up to chance.’

Shortly after, I received a long and somewhat irate email from Dana Gold, whom I knew from our time together at Harvard’s J. E. Safra Center for Ethics. A lawyer and an activist, Dana worked at a leading non-profit whistleblower protection and advocacy organization in Washington DC: Government Accountability Project. I had got it wrong, she wrote. It is not luck, it is strategy. Her team knew all about this. Since supporting Daniel Ellsberg and other Nixon administration whistleblowers in the 1970s, they continue to use this strategy to successfully work with whistleblowers. ‘Here are all the cases I can tell you about’, she went on. I read her email, blushing quietly at my desk.

I feared I had embarrassed myself. And perhaps I had. But, to my knowledge, this strategy she spoke of is not widely known.⁷ And it is even less widely used. My exchange with Dana remained with me since then, as emails that make one blush often do. Her points raised ideas of disruption patterns, the organizing tactics that might support these, and the work needed to draw them out and make them explicit. They evoked strategies beyond official channels: strategizing for dissent.

Public whistleblowing may feel unpredictable but that does not mean we don’t rely on it. Still etched on people’s memories across the world are the public whistleblowers working in healthcare who told us about dangers to life posed by substandard protection equipment during the outbreak of the COVID-19 pandemic. During this time, the UK charity Protect, for instance, estimated that, according to people ringing their helpline, for every five whistleblowing disclosures related to the virus, and raised internally, two were completely ignored by employers. Many whistleblowers persisted and were punished. Meanwhile, workplaces continued to be sites of widespread COVID-19 transmission. Subject to retaliation, the whistleblowers who went public were given few legal protections. This is because they were in too much of a rush to wait for slow official channels to work, a prerequisite of many whistleblower protection laws. But, as we saw then, we needed to know what they were saying: immediately. Public disclosure was the only, albeit desperate, choice for these health workers. Ignoring this side of whistleblowing is dangerous for us all. The chapters in this book do the opposite. Public whistleblowers are the focus.

Inspired by the work of activist-lawyers and others who work behind the scenes, this book examines the organizing practices and alliances they form. Grounded in scholarly research and academic insight,⁸ it examines the experiences of workers who find themselves outside the official channels: outside the organization, and sometimes outside the law. It follows their journeys to secure support from whatever sources make themselves available: legal avenues, caring colleagues, other whistleblowers, knowledgeable journalists and helpful advocacy groups. The book takes a deep dive into the sorts of connections that seem to work, or at least to help, and explains why. It also looks at the reasons why they sometimes don’t work, or work only a little, because, if one learns anything from studying this area, it is that it is ambiguous and complex, and that something that seems like a resolution today can look very different tomorrow. The aim is to paint a picture that is somewhat richer than the anaemic sketch we currently have.

In attempting to answer the questions set, this book does some things, and it does not do other things. It is not a roadmap for whistleblowers to follow; it contains no simple formula for success or survival. Many – perhaps all – whistleblowers do not win in the traditional sense, because the journey can be gruelling. But the experiences of partial victories, and of forming alliances and connections, of revealing critical and hidden information so new investigations can be started and demands for more can be sparked, can lead to a reframing of what winning might mean. These experiences must be explored and interrogated so we might learn how people navigated them in the past. Specifically, we will ask how partnerships emerge through which whistleblowers speak truth to power in tandem with others, how these relationships are organized and the challenges and opportunities they offer.

It appears we cannot ignore this aspect of speaking up. In the face of serious and systemic wrongdoing, most workers simply decide to stay silent.⁹ Of course they do. Why risk it? Silence is a feature of institutions and organizations today, and it is likely to remain so in the future. Democracy, flawed as it is, is challenged by rising authoritarianism in many countries, while the accountability of public figures and institutions often seems to be waning. With the increasingly opaque goings-on inside organizations, we depend ever more on genuine whistleblowers. We need new ways to help them succeed. A better understanding of the dynamics involved in whistleblowing, and how its challenges can be overcome, is a good place to start.

Before we move on, it is important to clarify what we mean by prevailing: what we understand as whistleblowing ‘success’. This is difficult to specify because public whistleblowing is so complex. Success could arguably encompass some or all of the following: acknowledgement of wrongdoing by the employer; the ending of the wrongdoing; some kind of reparation for suffering caused by retaliation; success in a court case¹⁰ – or indeed mere survival on the part of the public whistleblower and their family who have been subject to a devastating campaign of attack. Achieving any one of these goals by no means ensures the others are attained, and all are rare in themselves. Discussing his observations of the aftermath of whistleblowing, social science professor Brian Martin does not mince words when it comes to whistleblowers: ‘the prominent, lionized beacons of hope are the rare exception, and even most of them pay a horrible price with lifelong scars’.¹¹

A more holistic definition of success is therefore required. The widely accepted definition of whistleblowing as the ‘disclosure of illegal, immoral, or illegitimate practices under the control of (one’s) employers to persons or organizations that may be able to effect action’ is useful here.¹² A version of ‘success’ we can work with is to see it as ensuring one’s disclosure reaches – that is, is understood and acknowledged by – another who may be able to effect action. A successful public whistleblowing disclosure, for our purposes, is one in which the speaker is failed by institutional channels yet succeeds in reaching an audience that can do something about the wrongdoing. The hope, of course, is that action will be taken. But reaching the audience is the essential first step. And a ‘genuine’ whistleblowing disclosure is, following international legal and research best practice, defined here as one in which the worker disclosing holds a reasonable belief that these wrongful practices are indeed occurring.¹³

Introducing the Book

This book moves through the different aspects of a whistleblowing journey that, taken together, forms the beginning of what might be understood as the organizing practices of public whistleblowing. We begin with the official channels, the first stop for most workers speaking up. While these can sometimes work well, they can in some cases prove impotent in helping a disclosure reach its audience. More than this, we see how these channels can be actively used against a whistleblower who has not yet gone public but is realizing just how unwanted their disclosure is. After this, we examine the legal landscape of whistleblower protections, offering promises that can sometimes prove useful, but can also be undermined by powerful employers with deep pockets intent on exploiting loopholes in the law. The experiences of the high-profile whistleblowers from Theranos, Silicon Valley’s blood-testing start-up whose founders were convicted of fraud, offer valuable illustrations in Chapter 2. By the time we reach Chapter 3, we will have seen how the popularized solutions to whistleblowers’ woes – the official channels and the laws – can be not only weak but also dangerous. When formal shields prove useless, whistleblowers can turn to other workers in the same situation. Groups form, providing essential support and solidarity. As the experience of Amazon warehouse whistleblowers during the COVID-19 pandemic demonstrates in Chapter 3, whistleblower groups are as complex as they are valuable.

In many cases, whistleblowers find themselves in the public eye, bringing a whole new set of problems. Addressing this, we start to look for other ways forward. Chapter 4’s focus is the media: those journalists and reporters who represent a vital means by which a public whistleblower gains support. But dealing with the media is fraught with uncertainty, as Facebook whistleblower Frances Haugen’s journey shows. By now a surprising element is emerging: how whistleblowers make use of the mistakes made by anxious, defensive employers, and the unintended consequences of their retaliations. These can be turned around to backfire on the would-be attackers, helping a public whistleblower secure support even when up against a well-known employer with deep pockets.

Next, Chapter 5 introduces the whistleblower advocates – the small group of organizations that bring whistleblowers together with interested stakeholders: journalists, other whistleblowers, activists, sympathetic lawyers, oversight bodies, lawmakers and many others, all the while doing their best to keep the whistleblower safe from harm and minimize stress as much as possible. But these campaigns come with challenges, leaving the landscape uncertain for people who disclose. The powerful story of whistleblower nurse Dawn Wooten raising concerns on behalf of female immigrant detainees housed at a US Immigration and Customs Enforcement (ICE) facility offers insights into the difficulties experienced by those who speak up without financial means, but also how national attention to the problem can be secured with partners.

Chapter 6 brings it all together, drawing together the learnings emerging from patterns. A new way of looking at the organizing practices of public whistleblowers and their allies is introduced: collective bricolage. Collective bricolage is how whistleblowers and partners work together outside the official channels to generate new and creative ways of disrupting the status quo and disclose serious wrongdoing. Collective bricolage can involve capitalizing on limited and sometimes surprising resources and opportunities, including the unintended consequences of reprisals and the mistakes of a retaliating employer. Developing this concept, Chapter 6 examines the partnerships that bring whistleblower disclosures to light: the personal relationships and connections that seem to provide a force for collective action, where more distant ties, including those enabled by social media, fail. It shows the darker side of whistleblower partnerships: the difficulties and obstacles inevitably characterizing such stressful, precarious endeavours. This chapter teases out the nuances of collective bricolage: how the experiences of well-resourced whistleblowers with powerful allies differ drastically from the experiences of ‘ordinary’ workers speaking up, and also how the discrepancies contain valuable lessons.

Throughout, this book draws on academic research and theory, but this is moved to the background; instead, relevant ideas and concepts are referenced throughout the text and a full literature review, methodology and analytic discussion is offered in Appendix 1.

Last Resort Public Whistleblowing

It is critical to understand that public whistleblowing is a small part of the overall landscape of worker disclosures. The vast majority of workers first try to speak up inside their organization.¹⁴ Becoming a public whistleblower changes the game completely. It happens when people feel they have no other option but to go outside: to the media, activists or politicians for example. The whistleblower must find an outside audience that will listen, assist and act. Some are willing to be named, because they understand that disclosures are usually more credible when there is a face, a professional title and a personal story accompanying them. Others, terrified of reprisal, request they remain anonymous, but their names are revealed anyway, by colleagues, by court testimony that becomes unsealed, through leaks or other methods.

Regardless of how people arrive at public whistleblowing, here is the problem: right now, there is little help available about what to do and how to survive. If a well-planned discrediting campaign is doing what it is supposed to be doing, one’s colleagues and perhaps even friends and family might be ambivalent at best, sometimes even hostile. There is no strategy for gaining support, no outline, no plan for how to communicate the issue beyond the individual whistleblower’s immediate situation to a wider public.

To present public whistleblowing and strategy together feels somewhat incongruous. We associate the first term with the uncommon, the erratic and the uncontrollable. And strategy evokes ideas of schemes, tactics and being organized. Yet perhaps to not think of these things together is to ignore what is actually happening and what is needed. This is not my big idea. As we will see, some people have worked like this for years, supporting whistleblowers. But the research emanating from these efforts is scant. The likely reason is that most advocacy groups are trying their best to raise the money to keep the legal helpline going, to host information awareness events, to support their clients and to challenge ongoing abuses by formidable institutions albeit from a position of less power and fewer resources. Undertaking the kind of research-based strategizing required is a luxury not many have.

These aspects barely get a mention when we hear about whistleblowers in the news, or even when academics and policymakers turn their attention to the hot topic of how to help them.¹⁵ This is somewhat bizarre. To ignore the webs of connections and relations that support the survival of whistleblowers is to leave people truly in the lurch. Public whistleblowers have often come too far to turn back. It is not simply a case of giving up because things are not working out, going back to one’s life before it all started. Named in public, while the option to give up might be compelling, it is often not available. To try to make sense of this messy, confusing situation is critical.

To accept this project as worthwhile, we need to accept some uncomfortable ideas. The first is that things can sometimes be very wrong indeed. For many of us, this is difficult to fathom. We have a deep-seated desire to believe that justice can be obtained, and that there is a system or structure out there that will eventually work. Our modern way of thinking about society assumes a kind of continual upward progress; we are getting better and smarter, and the truth will someday come out. As many public whistleblowers find out first-hand, however, this is often simply not the case.¹⁶ Employers are mostly fine and good but sometimes they are not. Sometimes they respond with aggression to truth-tellers threatening the control they believe they have. And sometimes they win – even where serious wrongdoing and apparently self-evident disasters are at stake. Facts and truth are not always enough; sometimes they speak for themselves, and a groundswell of support and attention wells up behind them. And sometimes facts and truths are quashed and silenced. You do not need to be a crazy conspiracy theorist to hold both these competing ideas and be at peace with their co-existence. It is important, however, to look at them coldly, accept our need for happy resolutions and acknowledge that they don’t always happen. In writing this book, I found these grey areas in which struggles occur to be where small glimmers of what might be called hope can be found. So, it is here that the book is located.

Second, we may not reach an ending. This book may disappoint if we look for an either/or result; either the whistleblowers prevail and the problem is dismantled for good or employers have all the power and will quash every sign of dissent. It is likely that it will be both: it is a dance, a cycle. A scandal breaks, reprisals ensue, resistance is organized and attempted, and on it goes. Meanwhile, we see waves of legislation and regulation that then recede in the face of political opposition, until the next crisis and a new wave of legislation and regulation. What we do know is that we will always have whistleblowers and the world is generally better off for what they disclose. While we must work to create better laws and stronger systems, we will always have whistleblower reprisal. And perhaps we cannot rely solely on institutions to counter this. It will always be thus.

At the same time, there are, and always will be, gaps and fissures emerging: opportunities for solidarity, survival and the ability to reach new audiences. What is new is the work we do to formalize these opportunities, to listen to those with years in the field. To examine the scene presenting itself to us and put shape on it, to think about the kinds of scaffolding that might be constructed around this messy and chaotic situation. If we don’t do this, we continue on the current path assuming that efforts to perfect legislation and official channels are enough. This won’t help. Where to start? It is useful to begin with the core of the issue: a whistleblowing disclosure and the official channels.