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Governments and international institutions should do more to protect whistleblowers and confidential sources by adopting the recommendations in a new United Nations expert report, Human Rights Watch said today. David Kaye, the UN’s specialist on freedom of expression and access to information, presents his path-breaking report to the Third Committee of the UN General Assembly on October 22, 2015. It emphasizes that when those who divulge important facts are exposed to retaliation, the public suffers, as well as the individual.

“Disclosing secrets to the public is sometimes the only effective way to put an end to human rights abuses and hold those responsible to account,” said Dinah PoKempner, general counsel at Human Rights Watch. “The Kaye report applies well-established human rights standards to a practice that many in government prefer to punish than encourage.”

David Kaye, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. © Human Rights Watch 2015.

Those who break ranks to expose wrongdoing are often stigmatized, but they should be valued as a “fail safe” when there is no other way to alert the public, said Kaye. Whistleblowers Edward Snowden and Kathryn Bolkovac discussed the backlash they faced in trying to expose problems like mass surveillance or sex trafficking during peacekeeping missions in a video produced by Human Rights Watch. If governments would adopt the report’s recommendations, the difference for whistleblowers would be “like night and day,” Snowden said.

Governments should actively encourage disclosure in the public interest, the report says.

“Whenever the confidentiality of sources is compromised, whenever whistleblowers lack protection, we find that information simply doesn’t get to the public,” Kaye told Human Rights Watch. “What that means is in very concrete ways that we lose really full and robust public debate that’s based on genuine equal access to information between government, and individuals, and activists, and others. It means a lack of accountability when there’s wrongdoing, or unlawfulness that’s committed by government.”

The report notes that government surveillance and bans on encryptions and anonymity chill the willingness of sources and whistleblowers to come forward. A 2014 Human Rights Watch report documented this problem for journalists and lawyers.

Key features of the report include:

Public disclosure is often necessary

While internal channels can be an appropriate way for whistleblowers to express their concerns, the report observes that they are not always enough. Internal processes can leave whistleblowers unprotected from retaliation or fail to correct wrongdoing. The report stresses that where threats to a public interest are urgent or severe, such as violations of basic rights, public disclosure could be justified even if there are potentially effective internal channels.

Bolkovac, a police trainer who was subcontracted to the UN in Bosnia, revealed sex trafficking that implicated members of the UN police and was fired by her employer; her story was the subject of the film, The Whistleblower. “Protocols do exist on paper, especially within the United Nations, but the reality of implementing that on the ground or in the field is completely different,” Bolkovac told Human Rights Watch. “There were just so many levels and various steps and groups to work through, that it became almost impossible to report wrongdoing.”

Standards Apply to the UN and National Security Agencies
Whistleblowing in the national security context, or at international organizations such as the UN, should be protected under the same principles, the report says. There may be circumstances where an institution has a legitimate interest in keeping specific information secret – but avoiding embarrassment, hiding itself from view, or concealing wrongdoing are never acceptable reasons to punish or prohibit disclosures. Kaye told Human Rights Watch that organizations should not use terms like “national security” or “public order” as “a blanket way of preventing disclosure of information that’s in the public interest.”

Under the United States Espionage Act, which has been invoked by the Obama administration more often than by any previous administration, no consideration can be given to whether an unauthorized disclosure of classified materials might be justified in the public interest. Snowden, a former US National Security Agency (NSA) contractor whose revelations of mass surveillance programs sparked global debate and US reform efforts, exposed secret orders by the closed Foreign Intelligence Surveillance Court, lies to Congress, and sweeping programs whose scope was unknown to most legislators. Snowden told Human Rights Watch, “There’s always a danger in allowing any government, any state, or any organization more broadly, to declare an entire category of information beyond the reach of public hands.”

Government Bears the Burden of Justifying Non-Disclosure
The report stresses that the government in all situations carries the burden of showing that public disclosure threatens a specific harm to a legitimate state interest that overrides the public’s interest in knowing the information. It is not enough to simply assert that disclosure of secrets will harm national security generally.

Even where the government can show harm that overrides the public’s interest in a whistleblower’s disclosure, it should not impose disproportionate punishments, said Kaye. Such penalties harm not only the whistleblower but the public, because they deter valid disclosures as well.

Prevent Retaliation to Avoid Stifling Whistleblowers
Whistleblowers often live under a heavy stigma, and face professional retaliation as well as legal threats. “I’m quite sure that I’ve been turned down for various positions throughout the years because of my whistle-blowing, so that really does kind of stymie your career and put a real damper on what you do with the rest of your life once you come forward with this,” Bolkovac told Human Rights Watch.

The report strongly urges that states punish retaliation against whistleblowers, to avoid discouraging future disclosures of wrongdoing. Snowden agreed. “If we structure our societies in such a way that people reporting wrongdoing of the most serious nature have to basically stand up and light themselves on fire, we are very quickly going to find ourselves out of volunteers the very moment when society needs them the most.”

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