Eleven years ago, in the wake of the Enron debacle, Congress passed protection for whistleblowers as part of a wide-ranging set of public company reforms within the Sarbanes-Oxley Act.
Now consider that, instead of a former
National Security Agency Central Intelligence Agency employee and, until very recently, a Booz Allen Hamilton employee, Edward Snowden (pictured above) were instead a disgruntled Facebook or Google employee, he knew about the voluntary cooperation with PRISM, and he honestly believed that Facebook and/or Google were enabling the NSA’s illegal activity.
If he (1) reasonably believed that his employer was breaking the law by cooperating with the NSA and (2) engaged in whistle-blowing activity as defined by Sarbanes-Oxley, would he have a claim under Sarbanes-Oxley for adverse employment action if Facebook or Google had fired him instead of Booz Allen?
Though the definition of whistle-blowing is relatively circumspect under Sarbanes-Oxley, let’s assume that for purposes of our example, Snowden ’caused information to be provided’ to a ‘government body conducting inquiries’ related to a ‘rule or regulation of the Securities and Exchange Commission.’ It’s a stretch, but certainly the participation of Facebook or Google in PRISM and the PRISM activities are material information to any potential investor and certainly affect shareholder value.
Would he have a Sarbanes-Oxley case against his employer for retaliating against him?*
More importantly, would John Boehner or Eric Holder or the American public generally be more sympathetic to him if the whistle-blowing came from within Facebook or Google and not from within the public sector? Would the 1984 tropes be replaced by Atlas Shrugged tropes?
For the record, I think Snowden neither hero nor traitor, but I do immediately suspect the agenda of anyone who is certain of either.
I also think that the answer tells us much about how incredibly different U.S. politics is from world politics — that this is a relevant question is only possible in a highly individualistic culture like that of the United States, where distrust of government runs so high that one political party’s essential worldview for three decades has been ‘government is the problem.’
I don’t think re-framing the issue in these terms would make much difference in France or Brazil, let alone China, but I think it does in the United States.
* Theoretically, because Booz Allen is publicly traded, he might still have a case for retaliation, but I wanted my example here to be from the ‘private sector’ and not from the ‘public sector,’ though it’s obviously clear how blurred the line has become, even in a place like the United States, which we don’t think of the government as a large Venezuela-style actor in the private sector, and we like to talk about the ‘private sector’ and the ‘government’ as if there are bright lines between the two. (UPDATE: A commenter notes that when Snowden was revealed to have leaked the PRISM documents, the U.S. government would have revoked his clearance, which may have made him simply unable to carry out his duties under Booz Allen’s contract with the NSA, casting more doubt on why Snowden’s Sarbanes-Oxley case as a Booz Allen employee would be more farfetched.)