Rethinking whistleblowing in the digital age

At the heart of the highly public argument over privacy rights and secret government surveillance is the technology that has accelerated both the collection of data and the discovery of such activities.

While whistleblowing is not new, the power to amass vast amounts of data and the ability for leakers to rapidly release information hinges on technology that is far ahead of the outdated legal limitations that deal with such events. That means the government faces tough but critical decisions in how it handles secrecy in a new era of digital transparency, some experts say.

"Technology is part of the reality of the world we live in, and a basic principle is that governments should have effective systems that protect national security secrets," said Sandra Coliver, senior legal officer at the Open Society Justice Initiative. "If they're going to do that effectively, given the amount of information that's now available, [officials] are going to have to make choices."

Government officials justify domestic surveillance programs, including the National Security Agency's recently exposed Prism, on the grounds that they need the information to scan for potential terrorist activities. Following the attacks of Sept. 11, 2001, information-sharing has become essential to modern security efforts.

"There was a recognition after 9/11 that part of the failure of intelligence was inadequate sharing of information within the U.S. government and between the U.S. and allies. So the U.S. is on record recognizing that effective defense requires information to be shared," Coliver said.

While top U.S. officials, including President Barack Obama, continue to defend NSA's program, many also recognize that the law has failed to keep up with the digital evolution.

"The pace of technology change...poses a problem, from both a policy and a legal standpoint, to keep up with the rapid changes in technology, which is becoming ever more pervasive in our society," Director of National Intelligence James Clapper told NBC reporter Andrea Mitchell on June 9. "As the technology changes...we have to adapt as well to both provide that security and also ensure civil liberties and privacy."

Some argue that finding the sweet spot between national security concerns, privacy rights and public access to information may be the biggest challenge surfaced by the NSA scandal.

"There is a balance between transparency and effectiveness, but this needs to be recast in favor of transparency," Jim Lewis, senior fellow and director of the Center for Strategic and International Studies' technology and public policy program, wrote on June 13.

If a change in approach really is in order, one place to start could be a new set of international guidelines released June 12 that outline citizens' rights to national security information. The Tshwane Principles, released by the Open Society Justice Initiative and built on the work of 22 organizations, include 12 main principles based on various international laws, conventions and treaties already in place.

"The principles are intended to help people in counties around world involved in developing legislation or policy. The key audience is people who are drafting legislation or civil society groups advocating for legislative reforms," Coliver said.

The primary audience may or may not necessarily include the U.S. government, but Coliver said her organization is hopeful the guidelines could be used stateside to reassess the current approach to state secrecy and whistleblowing.

"It could be useful in the U.S. in that it can help people evaluate U.S. practices in light of international standards – there's always some interest and value in knowing," Coliver said. "The U.S. will tend to assert exceptionalism for a few reasons: For one, our troops are around the world and more than those of any other country we're exposed...to more national security risks. Our response to that would be that true national security depends on the public being able to engage in oversight and being able to inspire other countries to have democratic oversight."

Though the Tshwane Principles were drafted and set for June 2013 release some two years ago – and not driven by the recent coverage of the NSA and leaker Edward Snowden – similar recent cases of digital whistleblowing still play a role in the Open Society Justice Initiative's efforts.

"The WikiLeaks disclosures and whistleblower prosecutions heightened attention to the lack of clear standards concerning whistleblowers, the high public internet in information government often keep secret, and the pervasiveness of the abuse of national security secrecy," a release on the principles noted.