Ben O’Neill writes: Provisions of the Espionage Act are now being brought to bear against [Edward] Snowden to try to put him in prison. But what is more interesting than consideration of the provisions of an Act of the US Congress is to appeal to the science of jurisprudence to determine the normative question of when whistleblowing should and should not be regarded as a criminal action. This is an important jurisprudential question, since it is common for people to assent to the view that whistleblowing should be a protected activity, even when it “breaks the law” in the sense of violating contractual obligations or secrecy legislation.

Whistleblowing involves the revelation of misconduct or illegality occurring in an organization. This necessarily involves disclosing secret information beyond the bounds intended by those trying to keep it secret, and often this involves publication and disclosure to the general public. By virtue of the fact that whistleblowers exist within the organizations they are exposing, they are almost always under some contractual or statutory requirement not to disclose the information they are disclosing. If one takes these obligations at face value then it would appear that whistleblowing must always be regarded as a breach of law, and possibly also a breach of ethics, at least insofar as it involves a breach of contract with the organization where the whistleblower is employed. Under such a view, whistleblowing can never be legally justified, and it is only through an ethical imperative to break the law that it could be justified ethically.

Confidentiality contracts are a legitimate part of the management of many kinds of organizations, and in many cases they are indispensible to the successful operation of the organization. This is true in most legitimate professions, and of course, all illegitimate ones. It is certainly true that people and organizations can enter into confidentiality contracts of this kind, and in the ordinary course of business these contracts create justifiable legal and ethical obligations for the parties involved. If a person agrees to confidentiality in dealings with an employer or client, and agrees to keep sensitive material a secret, then ordinarily this would be a legitimate and binding contract that would bind the person to make good on their promise. Failure to do so would be a breach of contract, and might also involve breaches of other legal duties (e.g., fiduciary duties).

However, one exception to this ordinary contractual case is crucial: confidentiality contracts are not legitimate and should not be regarded to be ethically or legally operative when the confidentiality is designed to protect secret unlawful actions that are being taken by one of the parties. This is part of a wider objection in law to what are sometimes called “unlawful agreements”. Broadly speaking, contracts cannot be regarded as legitimate if they involve agreement to perform an unlawful action, or an action designed to further an unlawful purpose. This is the basis on which one can regard whistleblowing as a lawful activity, notwithstanding that it often proceeds in breach of an agreement of confidentiality. In cases of unlawful action occurring in an organization, the action of keeping information confidential will not usually be illegal in its own right, since people are rarely under a positive legal obligation to report breaches of law (with some exceptions). Regardless, this is no bar to the invalidity of a contract obliging a party to do this. A contract can be considered unlawful even if the acts agreed to be taken are perfectly legal, “… by reason of the wrongful purpose of one or both parties in making it.” Hence, a confidentiality contract which protects an underlying unlawful activity is not generally legitimate. [Continue reading…]

This extract comes from part one of a two-part article. Part two can be read here.