August 13, 2015
Today is National Whistleblower Appreciation Day. We all remember the media frenzy surrounding Edward Snowden’s revelation that he was the source of leaks about the National Security Agency’s domestic surveillance activities. This day raised the question who is really entitled to use the term “whistleblower.” It’s a question we get a lot as we screen qui tam or other inquiries and guide people through the difficult decision-making process of whether to come forward or not. So it’s a question about which we have some interest.
There are, it turns out, many different types of whistleblowers. The term is used generically to describe someone who is coming forward to alert authorities or the media of a problem that is not widely known or understood–and where the individual coming forward feels there is a need for people to know, even if it there is risk involved. People can think of themselves as whistleblowers in a variety of contexts, such as with respect to sexual harassment in the workplace, the government being less than truthful about what it is doing, and corporate misconduct of almost any form. I am reminded of a New Yorker cartoon some time ago, where a child sees her brother with his hands in the cookie jar and threatens to tell Mom. “Tattle-Tale!” the brother scolds. “I prefer whistleblower,” the sister replies. So the term has many, many uses.
The important thing to remember when you hear the term is the context. There are now dozens of state and federal statutes that protect “relators” or “informants,” or “whistleblowers.” These are usually linked to specifically-defined forms of “protected activity,” which might include filing a qui tam complaint in a False Claims Act case, or submitting a tip to the SEC’s whistleblower program dealing with securities fraud, or filing a whistleblower claim to the IRS. Many of these statutes protect the whistleblower’s identity indefinitely or permanently–a far cry from Mr. Snowden coming forward to say, “I’m the leak and here’s why I did it.”
So when you hear the term, it’s good to remember that not all whistleblowers are alike, and not every whistleblower statute is alike. Some may protect you more than others. This is why we’re in the business–to help people navigate these tricky waters, whatever name they choose to describe themselves.