Snowden Leak Highlights Few Whistleblower Protections for Intelligence Contract Employees

Mike ElkOn Sunday, The Guardian revealed that Edward Snowden, a 29-year-old information technology specialist employed by the federal contractor Booz Allen Hamilton, was its source for a series of bombshell leaks regarding the National Security Agency’s (NSA) surveillance apparatus. While Snowden’s leaks have raised a series of troubling questions about Americans’ privacy and the national security state, they also make clear how limited the privacy and whistleblower protections are for private contract employees working in the intelligence sector.

Under current federal law, employees working for the federal government have whistleblower protections that provide avenues for them to follow should they want to report potential abuses. As part of last year’s Whistleblower’s Protection Enhancement Act, rights for whistleblowers were enhanced for many categories of federal employees, but intelligence employees were excluded from coverage under the act. Likewise, intelligence workers—both federal and contract employees—were excluded from whistle blower protections offered to military contract employees under the most recent National Defense Authorization Act (NDAA).

While federal workers employed in intelligence gathering have less whistleblower protections than other federal workers, they are still able to raise their complaints with the Inspector General of the agency employing them or with members of Congress sitting on the Intelligence Committees. Under President Barack Obama’s Presidential Policy Directive 19 (PPD-19) issued last October, intelligence workers directly employed by the federal government received enhanced whistleblower protections against retaliation. By contrast, though intelligence employees employed for federal contractors like Booz Allen Hamilton are also allowed to report potential abuses to the Inspectors General of the agencies that contract with their employers, they have no protections against employer retaliation, such as being fired.

“Intelligence community contractors have been shut out of all of the recent reforms,” says Angela Canterbury, director of policy at the Project On Government Oversight (POGO). “They received no coverage under the WPEA for federal employees, the PPD-19 for IC civil servants, and were carved out of the contractor whistleblower protections in the NDAA—based on objections from the Congressional intelligence committees—leaving them with no specific protections for whistleblowing under the law. If you look at intelligence contractors, they have no protections under any of the laws. It really is an accountability loophole.”

The only recourse for conscience-stricken employees classified like Snowden have in these situations is to hope their superiors won’t fire them for reporting abuses. However, with a company like Booz Allen that receives 98% of its $5.76 billion annual revenue from the federal government, there is a substantial financial motivation to not draw any attention to abuses by the federal government.

“Where would a whistleblower go first,” asks Donald Cohen, executive director of the anti-privatization group In The Public Interest. “First, they [would] go up the chain of command and [reporting] it wouldn’t be in the interest of the chain of command. What is in the interest of the chain of command is to keep quiet and keep the contracts flowing. If you are in a public agency you may go up the chain of command and you may run into the same roadblocks but it is clear what you can do from there.”

Not only do intelligent contract employees have fewer whistleblowing protections, but the private corporations that employ them also have fewer legal restrictions when it comes to electronically monitoring and surveilling employees. According to Paul Secunda, a labor law professor at Marquette University, federal workers directly employed by the federal government receive at least some protections from the 4th Amendment against searching their communications, even on federal equipment, without first establishing reasonable cause.

Indeed last year, the FDA was caught employing a sophisticated electronic surveillance system to monitor disgruntled FDA employees who were communicating with Congressional staffers, journalists, federal Inspectors General (IGs), and the Office of Special Counsel (OSC) regarding problems with the design of a medical device. Following an investigation, last June the OSC released a “Memorandum For Executive Department and Agencies,” [PDF], which noted that:

agency monitoring specifically designed to target protected disclosures to the OSC and IGs is highly problematic. Such targeting undermines the ability of employees to make confidential disclosures. Moreover, deliberate targeting by an employing agency of an employee’s submission (or draft submissions) to the OSC or an IG, or deliberate monitoring of communications between the employee and the OSC or IG in response to such a submission by the employee, could lead to a determination that the agency has retaliated against the employee for making a protected disclosure. The same risk is presented by an employing agency’s deliberate targeting of an employee’s emails or computer files for monitoring simply because the employee made a protected disclosure.

However, since contractors are employed by private corporations, arbitrary searches by corporate entities on corporate property are legal, thus making it significantly more difficult for whistleblowers to pass on information without being detected by the corporations employing them.

“Look at Snowden himself, look at what he had to do,” says Secunda. “He couldn’t rely on the 4th Amendment. He basically had to flee the country. If he had still been an employee of the CIA, he would have been a public employee with protections against unreasonable search and seizure. He would have at least theoretically had more robust protections under the law. Given that he was no longer employed by the CIA, given that he was employed by Booz Allen, he does not fall under that state action doctrine against unreasonable search and seizure by the state.”

Already, more than one-third of the 1.4 million people in the United States with top secret security clearance are employed as private contractors. With fewer protections afforded to them, private contractors, many whistleblower advocates worry, could receive an even larger share of this type of work.

“There is not the same level of accountability. We have a situation where the intelligence community is largely run by contractors,” says POGO’s Canterbury. “Perhaps we should look at the influence of the profit motive. Look at a company like Booz Allen where 98% of their revenue is from the federal government. Are they going to recommend things in the national interest or things that are important to their bottom line?”

This article was originally printed on Working In These Times on June 11, 2013.  Reprinted with permission.

About the Author: Mike Elk is an In These Times Staff Writer and a regular contributor to the labor blog Working In These Times.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.