Pluralistic: How to screw up a whistleblower law (15 Apr 2024)

pluralist
1

Originally published at: Pluralistic: How to screw up a whistleblower law (15 Apr 2024) – Pluralistic: Daily links from Cory Doctorow



Today's links


A proletarian-looking figure glowering from between rusty bars. In front of the bars is a capitalist-type guy in a top hat holding a huge money-sack emblazoned with a dollar-sign. He's shouting over his shoulder at the imprisoned prole. A whistle sits on the ledge of the cell bars.

How to screw up a whistleblower law (permalink)

Corporate crime is notoriously underpoliced and underprosecuted. Mostly, that's because we just choose not to do anything about it. American corporations commit crimes at 20X the rate of real humans, and their crimes are far worse than any crime committed by a human, but they are almost never prosecuted:

https://pluralistic.net/2021/10/12/no-criminals-no-crimes/#get-out-of-jail-free-card

We can't even bear to utter the words "corporate crime": instead, we deploy a whole raft of euphemisms like "risk and compliance," and that ole fave, the trusty "white-collar crime":

https://pluralistic.net/2021/12/07/solar-panel-for-a-sex-machine/#a-single-proposition

The Biden DOJ promised it would be different, and they weren't kidding. The DOJ's antitrust division is kicking ass, doing more than the division has done in generations, really swinging for the fences:

https://pluralistic.net/2024/03/22/reality-distortion-field/#three-trillion-here-three-trillion-there-pretty-soon-youre-talking-real-money

Main Justice – the rest of the DOJ – promised that it would do the same. Deputy AG Lisa Monaco promised an end to those bullshit "deferred prosecution agreements" that let corporate America literally get away with murder. She promised to prosecute companies and individual executives. She promised a lot:

https://pluralistic.net/2024/03/22/reality-distortion-field/#three-trillion-here-three-trillion-there-pretty-soon-youre-talking-real-money

Was she serious? Well, it's not looking good. Monaco's number two gnuy, Benjamin Mizer, has a storied career – working for giant corporations, getting them off the hook when they commit eye-watering crimes:

https://prospect.org/justice/2024-04-09-reform-groups-lack-of-corporate-prosecutions-doj/

Biden's DOJ is arguably more tolerant of corporate crime than even Trump's Main Justice. In 2021, the DOJ brought just 90 cases – the worst year in a quarter-century. 2022's number was 99, and 2023 saw 119. Trump's DOJ did better than any of those numbers in two out of four years. And back in 2000, Justice was bringing more than 300 corporate criminal prosecutions.

Deputy AG Monaco just announced a new whistleblower bounty program: cash money for ratting out your crooked asshole co-worker or boss. Whistleblower bounties are among the most effective and cheapest way to bring criminal prosecutions against corporations. If you're a terrified underling who can't afford to lose your job after narcing out your boss, the bounty can outweigh the risk of industry-wide blacklisting. And if you're a crooked co-conspirator thinking about turning rat on your fellow criminal, the bounty can tempt you into solving the Prisoner's Dilemma in a way that sees the crime prosecuted.

So a new whistleblower bounty program is good. We like 'em. What's not to like?

Sorry, folks, I've got some bad news:

https://www.corporatecrimereporter.com/news/200/stephen-kohn-on-the-justice-department-plan-to-offer-whistleblower-awards/

As the whistleblower lawyer Stephen Kohn points out to Russell Mokhiber of Corporate Crime Reporter, Monaco's whistleblower bounty program has a glaring defect: it excludes "individuals who were involved with the crime." That means that the long-suffering secretary who printed the boss's crime memo and put it in the mail is shit out of luck – as is the CFO who's finally had enough of the CEO's dirty poker.

This is not how other whistleblower reward programs work: the SEC and CFTC whistleblower programs do not exclude people involved with the crime, and for good reason. They want to catch kingpins, not footsoldiers – and the best way to do that is to reward the whistleblower who turns on the boss.

This isn't a new idea! It's in the venerable False Claims Act, an act that signed into law by President Abraham Lincoln. As Kohn says, making "accomplices" eligible to participate in whistleblower rewards is how you get people like his client, who relayed a bribe on behalf of his boss, to come forward. As Lincoln said in 1863, the purpose of a whistleblower law is to entice conspirators to turn on one another. Like Honest Abe said, "it takes a rogue to catch a rogue."

And – as Kohn says – we've designed these programs so that masterminds can't throw their minor lickspittles under the buss and collect a reward: "I know of no case where the person who planned or initiated the fraud under any of the reward laws ever got a dime."

Kohn points out that under Monaco, the DOJ just ignores the rule that afford anonymity to whistleblowers. That's a big omission – the SEC got 18,000 confidential claims in 2023. Those are claims that the DOJ can't afford to miss, given their abysmal, sub-Trump track record on corporate crime prosecutions.

(Image: Karen Neoh, CC BY 2.0; Robert Thivierge, CC BY-SA 2.0. modified)

Hey look at this (permalink)


A Wayback Machine banner.

This day in history (permalink)

#20yrsago Why national ID cards make us less safe https://www.schneier.com/essays/archives/2004/04/a_national_id_card_w.html

#20yrsago EFF guide to Gmail privacy https://web.archive.org/web/20040516090804/https://blogs.eff.org/deeplinks/archives/001425.php#001425

#20yrsago Stephenson’s money-centric interview on Wired News https://web.archive.org/web/20040510183726/http://www.wired.com/news/culture/0,1284,63050,00.html?tw=wn_tophead_1

#15yrsago Somali pirates versus European toxic-waste dumpers https://www.independent.co.uk/voices/commentators/johann-hari/johann-hari-you-are-being-lied-to-about-pirates-1225817.html

#15yrsago If you lose your Amazon account, your Kindle loses functionality https://www.mobileread.com/forums/showthread.php?t=44350&highlight=amazon+banning

#15yrsago Secretive US prisons hold “terrorists” including animal rights activists and people who gave to the wrong charity http://www.greenisthenewred.com/blog/communication-management-units-mcgowan/1747/

#15yrsago Amazon explains cataloging error that banished queer books to “adult” purgatory https://www.latimes.com/archives/blogs/technology-blog/story/2009-04-13/amazon-begins-to-re-rank-affected-adult-books-theories-swirl

#15yrsago Texas lawmaker: Chinese Americans should change names so “Americans” can handle them https://web.archive.org/web/20090410142836/https://thinkprogress.org/2009/04/09/brown-asian-names/

#15yrsago John McDaid’s “(Nothing But) Flowers”, sweet and haunting sf story https://web.archive.org/web/20090414052546/http://www.torvex.com/jmcdaid/node/984

#15yrsago Terrible anti-piracy ads from the past 15 years https://www.theguardian.com/media/pda/2009/apr/08/piracy-piracy

#10yrsago Study: American policy exclusively reflects desires of the rich; citizens’ groups largely irrelevant https://www.cambridge.org/core/journals/perspectives-on-politics/article/testing-theories-of-american-politics-elites-interest-groups-and-average-citizens/62327F513959D0A304D4893B382B992B

#10yrsago HOWTO buy your way out of a California speeding ticket https://priceonomics.com/can-you-buy-a-license-to-speed/

#10yrsago Japanese game-show asks celebs to eat household objects that may or may not be chocolates https://kotaku.com/can-you-tell-whats-chocolate-and-what-isnt-asks-japa-1496174116

#5yrsago The #ShellPapers: crowdsourcing analysis of all correspondence between Shell and the Dutch government https://www.ftm.nl/dossier/shell-papers

#5yrsago Air tanker drops are often useless for fighting wildfires, but politicians order them because they make good TV https://www.latimes.com/local/la-me-wildfires29-2008jul29-story.html

#5yrsago America today feels like the last days of the Soviet Union https://eand.co/how-american-collapse-resembles-soviet-collapse-94773b44fe17

#5yrsago EFF to Facebook: enforce your rules banning cops from creating sockpuppet accounts and be transparent when you catch cops doing it https://www.eff.org/deeplinks/2019/04/facebook-must-take-these-four-steps-counter-police-sock-puppets

#5yrsago Not just Apple: Microsoft has been quietly lobbying to kill Right to Repair bills https://medium.com/u-s-pirg/microsoft-named-as-stopping-right-to-repair-in-washington-b880bf4ad052

#5yrsago Silicon Valley’s techie uprisings reveal growing support for socialism in tech https://www.salon.com/2019/04/11/silicon-valley-once-a-bastion-of-libertarianism-sees-a-budding-socialist-movement/

#5yrsago Investors controlling $3B in Facebook stock demand Zuckerberg’s ouster, and they will lose https://www.businessinsider.com/facebook-investors-will-vote-to-oust-mark-zuckerberg-as-chairman-2019-4

#5yrsago Starz abuses the DMCA to remove EFF’s tweet about Starz abusing the DMCA https://www.eff.org/deeplinks/2019/04/effs-tweet-about-overzealous-dmca-takedown-now-subject-overzealous-takedown

#5yrsago RIP, science fiction and fantasy Grand Master Gene Wolfe, 1931-2019 https://reactormag.com/gene-wolfe-in-memoriam-1931-2019/

#5yrsago Leaked, “highly classified” French report shows that the slaughter in Yemen depends on US support https://theintercept.com/2019/04/15/saudi-weapons-yemen-us-france/

#1yrago SVB bailouts for everyone – except affordable housing projects https://pluralistic.net/2023/04/15/socialism-for-the-rich/#rugged-individualism-for-the-poor

Upcoming appearances (permalink)

A photo of me onstage, giving a speech, holding a mic.


A screenshot of me at my desk, doing a livecast.

Recent appearances (permalink)


A grid of my books with Will Stahle covers..

Latest books (permalink)


A cardboard book box with the Macmillan logo.

Upcoming books (permalink)

  • Picks and Shovels: a sequel to "Red Team Blues," about the heroic era of the PC, Tor Books, February 2025

  • Unauthorized Bread: a graphic novel adapted from my novella about refugees, toasters and DRM, FirstSecond, 2025


Colophon (permalink)

Today's top sources:

Currently writing:

  • A Little Brother short story about DIY insulin PLANNING

  • Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. FORTHCOMING TOR BOOKS JAN 2025

  • Vigilant, Little Brother short story about remote invigilation. FORTHCOMING ON TOR.COM

  • Spill, a Little Brother short story about pipeline protests. FORTHCOMING ON TOR.COM

Latest podcast: Capitalists Hate Capitalism https://craphound.com/news/2024/04/14/capitalists-hate-capitalism/

This work – excluding any serialized fiction – is licensed under a Creative Commons Attribution 4.0 license. That means you can use it any way you like, including commercially, provided that you attribute it to me, Cory Doctorow, and include a link to pluralistic.net.

https://creativecommons.org/licenses/by/4.0/

Quotations and images are not included in this license; they are included either under a limitation or exception to copyright, or on the basis of a separate license. Please exercise caution.

How to get Pluralistic:

Blog (no ads, tracking, or data-collection):

Pluralistic.net

Newsletter (no ads, tracking, or data-collection):

https://pluralistic.net/plura-list

Mastodon (no ads, tracking, or data-collection):

https://mamot.fr/@pluralistic

Medium (no ads, paywalled):

https://doctorow.medium.com/

Twitter (mass-scale, unrestricted, third-party surveillance and advertising):

https://twitter.com/doctorow

Tumblr (mass-scale, unrestricted, third-party surveillance and advertising):

https://mostlysignssomeportents.tumblr.com/tagged/pluralistic

"When life gives you SARS, you make sarsaparilla" -Joey "Accordion Guy" DeVilla

2

For some reason I had to keep re-reading this. Even though you explicitly state it’s about excluding people from the reward program, my brain kept insisting it was about excluding people from prosecution, and telling me you’d got it backwards. Which you haven’t.

Stupid brain.

3

This topic was automatically closed after 15 days. New replies are no longer allowed.