TNRC Blog Whistleblower protection: A tool for stopping corruption that threatens the world’s forests, fisheries and wildlife

Whistleblower protection: A tool for stopping corruption that threatens the world’s forests, fisheries and wildlife

This post captures expert insights and responds to audience questions from a TNRC Learning Series Webinar on 8 September 2020 on the role of whistleblowers and whistleblower protections in stopping corruption that threatens the world’s forests, fisheries and wildlife. This webinar aimed to help practitioners to: (1) better understand effective strategies for reporting corrupt practices under United States whistleblower laws; (2) identify the most important innovations in whistleblower protection; and (3) assess opportunities to advance whistleblowing, and strategies for managing risks in a variety of contexts. A TNRC publication by the National Whistleblower Center is forthcoming on this topic. The webinar was attended virtually by practitioners based in 45 countries, a recording of the event is above, and a PDF of slides can be downloaded here.

Key Takeaways

  • Empowering whistleblowers to speak up without fear of reprisal can help to prevent, detect, investigate, and prosecute corrupt activity (OECD), including the corrupt actions that facilitate crimes affecting wildlife, fisheries, and forests.
  • Robust whistleblower protection frameworks are important for safeguarding the public interest and promoting accountability and integrity.
  • Where robust whistleblower systems and protections are lacking, certain corrupt practices driving the global illegal wildlife trade can be reported under U.S. laws such as the U.S. Foreign Corrupt Practices Act and False Claims Act.
  • Between 2011 and 2017, 2,655 whistleblowers from 113 countries outside the U.S. filed claims under the Foreign Corrupt Practices Act whistleblower reward provision.
  • Practitioners in civil society organizations where whistleblower laws and protections need strengthening should:
    • Urge governments to establish confidential reporting procedures;
    • Learn how to protect whistleblower communications (such as via encrypted channels) and effectively deliver their information;
    • Support anti-corruption laws that have strong civil, criminal and administrative sanctions and incentivize informants to come forward through rewards; and
    • Leverage transnational anti-corruption laws with a track record of success (National Whistleblower Center).

Questions and Answers

In addition to the forthcoming TNRC publication, the National Whistleblower Center has shared the following responses to questions from webinar attendees that could not be addressed due to limited time:

How do we protect whistleblowers in countries that have pervasive corruption in the exploitation of natural resources?

The key to whistleblower program success has been cooperative prosecutors and regulators operating in countries with strong legal frameworks. In countries with pervasive corruption, the National Whistleblower Center recommends educating and assisting whistleblowers on how to disclose wrongdoing to prosecutors and regulators outside the country. Our assessment is that currently the U.S. is by far the best place to bring this information because it has a number of whistleblower laws with broad jurisdictional reach, executive branch offices set up to receive confidential complaints, authorities allowing imposition of significant sanctions on wrongdoers, and mandatory whistleblower awards.

Is international application [of U.S. whistleblower laws] limited to those acts committed in international jurisdictions (like the high seas) or can they also be tied to violations of law in a third country, and if so, is there a requirement of a conviction in that third country?

Many cases brought under U.S. whistleblower law involve conduct that largely takes place outside the U.S., in foreign countries as well as on the high seas. There is no requirement of a conviction under foreign law. Some U.S. nexus is required; oftentimes, it is the fact that the company sells share of its stock in the U.S. or is working with another company selling shares in the U.S.

How much of the money [from sanctions on corrupt activity] goes into increasing law enforcement and “cleaning up the mess” [beyond rewarding whistleblowers, themselves]?

Some U.S. whistleblower laws (e.g., wildlife laws) allow a regulatory agency to redirect some of the money recovered from wrongdoers to conservation. For example, in 2017 an essential oils company pleaded guilty to illegal trafficking of rosewood oil and spikenard oil in violation of the Lacey Act and the Endangered Species Act and agreed to, among other sanctions, a payment of $125,000 toward conservation of protected plant species. Other laws (e.g., securities laws) call for regulators and prosecutors to include restitution to victims in the monetary sanctions for civil and criminal violations. For example, in 2019, the former CEO of a global investment company found to be engaged in mail fraud, wire fraud and money laundering was ordered to pay $1.1 billion in restitution to his investor victims.

How are potential whistleblowers educated as to incentives?

Whistleblower outreach and education is a responsibility of the agencies administering the whistleblower laws, but there are major gaps. Helping potential whistleblowers to understand their rights, including ways to mitigate risks, and helping whistleblowers to exercise their rights, are core functions of the National Whistleblower Center.

Do whistleblowers tend to give evidence (with identity protected)?

In the U.S., information provided to regulatory agencies anonymously and confidentially often leads to a settlement or administrative fine without the whistleblower's identity ever being revealed. If whistleblowers are needed for testimony in open court (a rare scenario), their identity is ordinarily revealed unless the court determines it would jeopardize their safety.

Can you talk about the role of journalists in sharing information from whistleblowers and the repercussions they may face?

Journalists are often whistleblowers, but the nature of their work means that they do not benefit from the protections that go along with reporting crimes through government channels. Note that journalists who receive information from whistleblowers have few legal obligations toward those whistleblowers, which is why National Whistleblower Center recommends that potential whistleblowers consult first with a qualified attorney bound by the attorney-client privilege. U.S. attorneys are required to uphold this confidentiality requirement regardless of the location of the potential whistleblower, so individuals in countries with weak whistleblower protections should avail themselves of attorneys who are licensed in the U.S. and are conversant with U.S. whistleblower protections. If a decision is made to disclose incriminating information with a journalist, that should be done as part of an overarching strategy aimed at maximizing both the protection of the whistleblower and the likelihood of success in addressing the corruption in question.

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Image attribution: © / Jen Guyton / WWF; © Brian J. Skerry / National Geographic Stock / WWF; © Georgina Goodwin / Shoot The Earth / WWF-UK; © Hkun Lat / WWF-Aus