Last week’s federal police raids sent a clear and unambiguous message to would-be whistleblowers. Revealing government wrongdoing can be a dangerous game.
But, as the Transparency International Australia chief executive, Serena Lillywhite, notes, whistleblowing remains critical to the functioning of a healthy democracy.
“A healthy democracy depends on the ability to hold decision-makers to account, and for that we need transparency,” she said. “The media and whistleblowers play a crucial role in shining a light on what our government does in our name.”
So is it still possible for whistleblowers to make revelations of government wrongdoing without repercussion? The short answer is yes.
Thankfully, there are still reliable ways to preserve your anonymity and to keep material confidential. The Guardian takes great care to protect its sources from the threat of reprisal and permanently keeps open secure channels of communication.
Whistleblowers should also take great care themselves to understand the legal protections available under current law.
How can I keep my communications with reporters away from prying eyes?
Maintaining a secure, confidential line of communication, from beginning to end, is critical to protecting the identity of whistleblowers. Generally speaking, that means not using regular phone calls, texts or unencrypted emails, and avoiding the use of devices that could be under surveillance.
The Guardian has published an exhaustive guide highlighting the best options for whistleblowers wanting to protect their anonymity and the confidentiality of material.
Of these options, SecureDrop is by far the best. It allows whistleblowers to communicate and share documents without being tracked, though only a small number of outlets, including the Guardian, make it available. SecureDrop makes no record of where material has come from, ensuring anonymity is preserved. It automatically encrypts documents, making it difficult for outside eyes to view the material. The Guardian will only ever access SecureDrop material from computers that are offline, lessening any risk of anonymity being compromised from this end. All the Guardian sees through SecureDrop is the shared material and a codename allowing replies to be sent to the whistleblower. Whistleblowers will need to find a computer that is not being watched, download the TOR internet browser, and go to https://www.theguardian.com/securedrop for next steps.
If SecureDrop is not possible, encrypted email is another way to prevent outsiders monitoring your communications with the media. Creating a new email account and setting up PGP encryption, if done properly, will maintain confidentiality. But the process requires some technical know-how. Users need a PGP tool (Mailvelope is popular), the public key of the journalist they wish to contact, the TOR browser and a newly created email address.
If you’re finding PGP difficult, ProtonMail is a secure, easy-to-use email service. ProtonMail is end-to-end encrypted but is as simple as most major email services, like Gmail. ProtonMail aims to eliminate any chance of your message being intercepted. Emails are stored on its servers in an encrypted format, and are transmitted between ProtonMail servers and devices in a similarly encrypted fashion. ProtonMail is set up in a way that makes your data inaccessible even to the company itself.
End-to-end encrypted messaging apps like Signal and Threema are also a good way to keep material confidential. The apps are as simple to use as text messaging, but keep the content of messages hidden from anyone but the sender and recipient. The apps, however, are not great for ensuring anonymity. Signal, for example, will generally display phone numbers. Using a temporary burner phone can help avoid this problem, if anonymity is critical.
Regular snail mail can otherwise help to ensure whistleblowers leave no digital trace. It’s generally unlikely mail will be intercepted, unless scans detect dangerous objects. But a risk remains that the sender’s location can be traced, either by identifying where the item was mailed from, or through the packaging. There is also the risk of items being lost or delayed in the mail.
People keep talking about the government’s new national security powers. How do they threaten my ability to talk to journalists?
Three things are relevant here: metadata retention laws, new powers designed to circumvent encryption and new secrecy offences.
The metadata laws introduced by the Abbott government allow the government to obtain warrantless access to information about a person’s communications. They apply to phone calls, texts, emails and internet activity. Metadata refers to basic information about a particular communication, not the actual content of the information itself. For a call, that might be the time of the call, the number dialled and the call’s duration. The law requires telcos to store such metadata for at least two years.
The risk here is obvious. It could allow the government to easily identify a journalist’s sources. After an outcry, the government made specific protections for journalists. Law enforcement must require a special journalist warrant before accessing a journalist’s metadata. Federal police have already failed to do that on one occasion. The metadata laws make it even more critical that whistleblowers avoid standard phone and text messages, and ensure they use safe, encrypted forms of communication like SecureDrop.
Australia last year also introduced a hugely experimental scheme that gives government the power to co-opt technology companies, device manufacturers and service providers to help it circumvent encrypted communications. Law enforcement agencies can now issue notices compelling companies to help them or build a new capability in their systems to monitor criminal suspects. The government said it only wanted to use the powers to investigate terrorism or child sex offences, but they can also be used for other crimes punishable by three years or more in prison.
Also last year, the government passed new espionage offences making it a crime punishable by seven years imprisonment for a current or former public servant to communicate information that “is likely to cause harm to Australia’s interests”. A second offence, punishable by five years behind bars, exists barring public servants from “communicating and dealing with information by non-commonwealth officers”.
What laws exist to protect me as a government whistleblower?
In Australia, protections for government whistleblowers are available through the public interest disclosure act 2013. The laws are designed to shield government whistleblowers from retaliation and encourage agencies to investigate allegations of wrongdoing. The protections are supposed to protect whistleblowers from criminal prosecution or civil action, or other recriminations. The laws are frequently criticised as weak, confusing and particularly bad at protecting disclosures to media.
They have failed to protect whistleblowers like Richard Boyle, who is facing a lengthy jail term for revealing the heavy-handed debt collection tactics of the Australian taxation office.
The protections are available to all current or former public servants, contractors, statutory office holders, staff at government-owned companies, and temporary public sector employees recruited through agencies. Individuals are only given protection if they blow the whistle on specific types of conduct, and make their disclosures to authorised persons, usually within their agency or to official government watchdogs.
Protection will only be given for the disclosure of certain types of conduct, including illegal conduct, maladministration, corruption, abuse of public trust, financial waste, perverting the course of justice, or conduct that endangers health or environmental safety.
The current scheme makes it difficult to go to the media and retain whistleblower protection, but it is possible.
First, whistleblowers must speak up internally first. To remain protected, whistleblowers can only make disclosures to authorised internal recipients, including their supervisor or manager. Protection is also extended to whistleblowers who speak to the commonwealth ombudsman, or, for intelligence cases, the inspector general of intelligence and security (IGIS).
In limited circumstances – and only once these internal steps are taken – whistleblowers can maintain legal protections if they take their concerns to the media, police or their lawyer. Whistleblowers can go public if they’re dissatisfied with the way their complaint has been handled internally, but only if the external disclosure is on balance not “contrary to the public interest”.
They must wait 90 days after going to the ombudsman or IGIS. Even then, whistleblowers can only give the external party the absolute bare minimum of information needed to show the misconduct.
Protections are not extended for whistleblowers going public about intelligence and sensitive law enforcement information.
I have information about corporate misconduct, will I still be protected?
Traditionally protections for corporate whistleblowers in Australia have been weak. The protections – contained in the corporations act 2001 – made it hard for corporate whistleblowers to speak to the media, even if the company and corporate regulator failed to act.
But parliament this year passed new reforms to significantly strengthen corporate whistleblowing protections.
Whistleblowers can now go to a journalist or parliamentarian to make “emergency” or “public interest” disclosures once 90 days has passed since they last blew the whistle, either internally or to a regulator.
A broader range of people can obtain such protection, including the family of current or former employees. Previously, protections were only available for revealing conduct that breached the corporations act.
Now protection can be obtained for disclosing a much wider range of misconduct, including fraud, bribery, corporate corruption and money laundering.
In some respects, Australia’s corporate whistleblowing regime will be world-leading.
There is now an onus on large companies to spell out how they will protect whistleblowers before they start experiencing reprisals, instead of waiting until the retribution begins to take start.