May 11, 2018

Being a whistleblower is not being a "leaker"

Dana Gold, American Constitution Society -  On March 28, 2018, FBI agent Terry Albury was charged under the Espionage Act with leaking classified FBI policy manuals to The Intercept that describe the FBI’s use of race and religion to decide who to investigate and surveillance tactics used to obtain journalists’ phone records without a judge-issued warrant or subpoena. Albury is the Trump Administration’s most recent target in their mission to prosecute so-called leakers. Reality Winner, an NSA contractor and the first person charged by the Trump administration with leaking classified information to the press (again The Intercept), is in jail awaiting trial for sharing a classified report about Russian cyberattacks executed to interfere with the 2016 presidential election.

But we should not call Winner and Albury leakers. They are whistleblowers.

The term leaker, when used by those in political power, is often used to imply any person releasing unauthorized information is doing something wrong and possibly criminal. Referring to legitimate whistleblowing as leaking gives cover to actions that support the rhetorical implication that such speech is something unlawful rather than protected.

In Albury and Winner’s cases, as members of the intelligence community, things are more complicated.

Whistleblower protection laws, though an imperfect patchwork of protections, seek to encourage disclosures of evidence of wrongdoing by offering protections from retaliation (and in some cases, to those who would disclose financial fraud, a potential financial reward for reporting violations). The whistleblower patchwork is overwhelmingly an employment law scheme, reflecting the fact that employees are in the best position to witness problems, promote compliance, and facilitate enforcement.


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