The U.N. envoy charged with safeguarding free speech around the globe has declared in a dramatic new report that confidential sources and whistleblowers are a crucial element of a healthy democracy, and that governments should protect them rather than demonize them.
The report by David Kaye, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, also highlights the harsh treatment of whistleblowers in the U.S., most notably former NSA contractor Edward Snowden, who is living in Russia as fugitive from the U.S. government.
Snowden has been charged with three felonies, including two under the heavy-handed World War I-era Espionage Act, which does not allow defendants to make the argument that their actions were in the public interest.
Kaye, a law professor at the University of California, Irvine, notes in his report that “Snowden’s revelations of surveillance practices” made “a deep and lasting impact on law, policy and politics.”
In a statement accompanying the report in response to Kaye’s questionnaire, U.S. officials acknowledged that government employees who deal with classified material are not covered by the Whistleblower Protection Enhancement Act. But they insisted that those employees “retain the ability to report any perceived government fraud, waste, or abuse to appropriate inspectors general, other executive branch oversight entities, and certain members of Congress while preserving any national security interests at issue.”
The U.S. statement maintained that criminal charges are reserved for people who disclose secrets “with the intent, or with reason to believe, that the information is to be used, or could be used, to injure or harm the United States, or to advantage a foreign nation.”
But those assertions were quickly condemned by whistleblower advocates as farcical.
Jesselyn Radack, a lawyer who represents whistleblowers, said the U.S. statement in response to Kaye’s questions “grossly overstates the protections for whistleblowers and journalists in the U.S. and turns a blind eye to the many shortfalls in current U.S. law and U.S. policies that chill freedom of expression and interfere with investigative journalism.”
“National security and intelligence community whistleblowers have no meaningful legal protections,” she noted.
Snowden, in a video from Human Rights Watch, declared that “a whistleblower almost has to become comfortable with the idea of becoming a martyr, because the probability of retaliation is so certain.” Here is the Human Rights Watch video:
In the report, Kaye sets out clear standards for how governments should treat sources and whistleblowers. For instance, he says that law enforcement and justice officials need to “publicly recognize the contribution of sources and whistleblowers sharing information of public relevance and condemn attacks against them.” He also asserts the importance of letting whistleblowers make the case that their disclosure was in the public interest.
Rules allowing journalists to keep their sources confidential “should not be reserved simply for professional journalists,” he writes, but should also extend to anyone “who may be performing a vital role in providing wide access to information of public interest.”
Finally, he says that “disclosure of human rights or humanitarian law violations should never [be] the basis of penalties of any kind.”
In a report in May, Kaye also asserted that encryption is an essential tool needed to protect the right of freedom of opinion and expression in the digital age because it creates “a zone of privacy to protect opinion and belief.”