For whom the whistle blows

Blowing the whistle on wrongdoing is on the rise, but not all allegations are straightforward, as Michael Dempsey reports

Amid the diplomatic spats and liberal outrage triggered by Edward Snowden’s revelations around US signals intelligence, one question has not been properly examined. Is he really entitled to call himself a whistleblower?

The manner of his departure from Hawaii, leaving a long-standing girlfriend in the lurch and reappearing under the protection of first China and then Russia, two nations with vast and often ruthless intelligence services, does raise serious questions. And many of his revelations seized on by The Guardian have made great headlines, but may fall apart under minor technical scrutiny.

Claims that millions of phone calls have been monitored fail to make the distinction between the content of calls, which has not been vacuumed up en masse, and what is known as metadata or data about data. It is this list of call numbers, dates and duration that the US National Security Agency (NSA) and the UK’s communications intelligence agency GCHQ have been harvesting.

Metadata gives intelligence agencies a starting point if they need to work backwards through the phone contacts of a terrorist suspect. This material is collected by all major spying services, including France’s external intelligence agency DGSE.

Andrew Parker, director-general of the normally reticent British security service MI5, has publicly described the leaks about voice and internet interception capabilities as causing “enormous damage” to the fight against terrorism.

Mr Parker was referring to the little understood fact that signals interception techniques are what give the entire intelligence community their leads and allow human spies to be pointed in the right direction. Without the reach of the NSA and GCHQ, the rest of the counter-terrorism apparatus would be unable to prioritise surveillance targets in a sea of potential suspects.

You can make a case for whistleblowing if an intelligence agency is acting illegally or disproportionately

This view wins agreement from Philip Davies, director of Brunel University’s Centre for Intelligence and Security Studies. In fact Professor Davies goes further in stressing just how far these leaks have undermined the physical security of Western citizens and armed forces. “People think of human intelligence work as being where life and limb are at stake, but troops and intelligence officers act on the basis of signals intelligence so it’s all about a risk to life and limb.”

He claims that much of the material published so far by The Guardian and other international titles lacks context, and has been presented to maximise embarrassment and damage to intelligence agencies without explaining the way in which an information dragnet is refined to deliver nuggets of actionable material.

Under US law, these intercepts will have been authorised by federal judges, in line with the Foreign Intelligence Surveillance Act, says Professor Davies. And while the equivalent UK legislation, the Regulation of Investigatory Powers Act requires a warrant to monitor the content of e-mails and calls, this does not extend to the metadata haul.

So if the core of Mr Snowden’s allegations relates to legally accrued anonymised data, rather than the intimate conversations of innocent citizens, is he truly a whistleblower?

Professor Davies is extremely cautious. “Theoretically you can make a case for whistleblowing if an intelligence agency is acting illegally or disproportionately or outside of authorised policy. But Mr Snowden’s whole conduct, his flight and choice of country of refuge is bizarre,” he says.

And Mr Snowden’s protest that he has not shared information with foreign intelligence services gets short shrift. “I cannot see him getting asylum in Russia without agreeing to be debriefed by their spies,” adds Professor Davies.

The timing of the Snowden leaks was especially convenient for the Chinese authorities. A relentless stream of stories concerning NSA techniques has blown the growing scandal of Chinese cyber espionage right out of the media. This may not have been Mr Snowden’s intent, but it is certainly not the result a classic whistleblower would aim for.

A genuine whistleblower reports to the management of a company rather than taking it to public opinion

There are also historical parallels between the way the Russian authorities used the notorious traitor and former British spy Kim Philby, and the manner in which Mr Snowden’s allegations are being spun out over time to cause prolonged damage to Western intelligence interests.

The KGB extracted Mr Philby from Beirut, leaving his wife Eleanor behind, early in 1963. His subsequent appearances, authorship of a supremely egotistical book My Silent War, and occasional meetings with Western journalists were all timed to cause optimum embarrassment to British and American interests.

Professor Davies is critical of the media’s reluctance to sift through Mr Snowden’s motives and thinks that the jury will remain out on his actions for years to come. “He doesn’t look like a conventional whistleblower – spinning out the revelations is strange.”

Michael Woodford, the former chief executive of Japanese corporate giant Olympus, was fired by the company in 2011. He had raised concerns about what transpired to be illegal payments of more than £1 billion and found that the only way to get his discoveries to a wider audience was to speak to Western journalists in Tokyo.

“The Japanese media is self-censoring, they wouldn’t attack a Nikkei Index-listed company like Olympus,” says Mr Woodford. Genuinely fearing for his safety he left Japan and went public with his discoveries, eventually triggering the dismissal of the entire Olympus board.

Today he lives in the UK and lectures on his experiences. Speaking after an international lecture tour, he recounts his own whistleblowing motives as being “to get the story out, and ensure that justice and accountability were seen to be done”.

Mr Woodward has had plenty of time to consider his life-changing decision to speak out about the Olympus facts and thinks that it’s time to address the language used to describe such disclosures.

“I don’t like the term ‘whistleblower’, I prefer to talk about truth-tellers,” he says. Whichever term is adopted, he thinks that all whistleblowers should guard against being seen as indulgent. He believes that the environment for making a principled stand has certainly improved in the West, noting that the UK’s 1998 Public Interest Disclosure Act has been valuable. This gives legal protection to any employee who is dismissed for taking complaints about unlawful acts to a superior.

Every whistleblowing story is different, says Mr Woodward, and he cautions that journalists should be willing to examine every angle before taking sides. But his sympathies lie with Mr Snowden and his actions. “I am very uncomfortable with any concentration of power and mass surveillance represents a concentration of power,” he says.

Mr Woodward certainly fits the definition of a genuine whistlelblower given by Ben Hamilton, a London-based managing director with corporate investigations specialists Kroll. “A genuine whistleblower reports to the management of a company rather than taking it to public opinion. Mr Woodward didn’t have anywhere else to go after talking to his board.” Mr Woodward had written to the board on six occasions imploring his colleagues to approve the appointment of forensic accountants to unravel the fraudulent payments.

Kroll’s own research indicates that whistleblowing is alive and well in the UK. The number of whistleblowing cases reported to the Financial Standards Authority increased by 276 per cent in the last four years. And Kroll reckons that 20 per cent of its investigations are now prompted by whistleblowing.

Nevertheless, in 19 per cent of these probes, the allegations turned out to be malicious and motivated by a desire to hit out at an individual or company. Frank disclosure of wrongdoing matters, but it is important not to award the title of whistleblower to anyone who claims the right to it. That right has to be earned and whether or not it is deserved can be a matter of opinion.