This is one of your first corporate clients—you’ve done a lot more with government whistleblowers
—and there are a lot of challenges with tech company whistleblowers, because their companies surveil their employees so heavily. What can you tell us about how this particular case came to be?
Tye: A mutual colleague suggested Frances give us a call. They let me know that someone would be getting in touch. She called me on the Signal app. We spoke for like 20 minutes on the first call, and within a few minutes, I very quickly realized that this is going to be significant.
My first piece of advice was, you should file disclosures with the SEC. She actually was hesitant on that point because she didn’t want to take an adversarial approach with the company. But I said, first of all, you really should for anti-retaliation reasons, because filing with the SEC is what triggers Dodd-Frank and Sarbanes-Oxley
protections. And second, the SEC is one of the most likely agencies to actually bring in enforcement action and hold the company accountable for the things you’re bringing forward. I think those arguments resonated, so we proceeded with SEC disclosures.
Angwin: Can you bring us up to speed on the SEC whistleblower program?
Tye: It was created by the Dodd-Frank Act, which was passed in 2010. It created the SEC Office of the Whistleblower and created the reward incentive program. Whistleblowers who provide the commission with original information that’s used successfully to bring enforcement action against the company have a statutory right to between 10 and 30 percent of whatever the SEC recovers. Obviously these can be very big numbers, so that can be a lot of money.
Everyone who files with the SEC, even if their claims don’t result in SEC enforcement action, is entitled to protection against retaliation.
Angwin: As I read them, the whistleblower protections seem to be against retaliation for someone who’s still working at the company, but Frances left the company in May. So does that still apply to her?
Tye: That’s a good question. I don’t have the statute in front of me, but it talks about employment-related retaliation. Most of the times that people suffer retaliation is when they’ve been fired, demoted, transferred, something like that. But I would say, the term in the statute would still apply to retaliation that’s related to employment.
There is some favorable precedent, not specifically on Dodd-Frank or Sarbanes-Oxley, but on things like Title VII of the Civil Rights Act and the so-called qui tam statute
—a different federal whistleblower statute. Even post-employment retaliation is illegal under qui tam
, so we would expect federal courts to interpret Dodd-Frank and Sarbanes-Oxley the same way as these other statutes.
Angwin: Would it be retaliation if the company sued her for breaking an employment agreement by taking materials?
Tye: Well, federal law says that no employer can stop her communications with the SEC or Congress. That’s in the Dodd-Frank Act, and the confidentiality agreement she signed with Facebook specifically says that. So she does have a legal right to make these disclosures.
We’re still worried though that Facebook could try to bring a frivolous claim against her, and even a frivolous lawsuit could be very costly and devastating for her.
Angwin: In light of that, it does seem risky to come forward with her name, correct? She could have done this anonymously.
Tye: That’s true. That was certainly something she considered. I think her first instinct was to stay anonymous. I said, ‘Well, that’s reasonable, but if you want to have a public voice on these policy issues, you won’t be able to stay totally anonymous.’ I think that she really wanted to be able to speak her mind on these things, and that’s what made her decide to identify herself.
Angwin: She’s quite eloquent. It’s really impressive, honestly.
Tye: She’s very smart and very thoughtful and systematic and a really good spokesperson.
Angwin: Tell me about how you got into this? You started as a whistleblower?
Tye: I was a whistleblower in 2014. I worked at the State Department. I had a top secret/SCI [sensitive compartmented information] clearance. My job was in the Human Rights Bureau working on internet freedom. I was part of the team responding to the Snowden disclosures.
As part of that response, I got briefed by the NSA, the National Security Agency, on its global signals intelligence operations and learned that even for the whole year after the Snowden disclosures, there hadn’t been a single story on the main legal authority that the NSA was using to collect Americans’ data, Executive Order 12333.
So I ended up hiring lawyers and going through the lawful disclosure process and met with both the State Department and NSA inspectors general and the House and Senate Intelligence Committee staffs, and went through the prepublication review process and got a piece in The Washington Post
, so that at least Congress and advocates in the public could understand the basics of how their data was being collected.
I think I spent $13,000 on lawyers. I was lucky that I knew lawyers and that I had enough money to pay them. I realized there weren’t good options in place for whistleblowers. So in 2017, at a time when I think many of us were concerned about the rule of law in the United States, I launched Whistleblower Aid.
You have started a GoFundMe
to support the costs of defending Frances. Can you tell me what it’s been like trying to fund-raise for Whistleblower Aid?
Tye: One problem raising money to pay for these cases is we can’t really talk much about the cases until most of the work is done.
We had spent hundreds of thousands of dollars before anyone knew there was a Facebook whistleblower. We’ve paid for legal fees, security media coaches, consultants, travel and logistics. We built a redaction team to redact these documents before they got to Congress. We bought a whole bunch of hardware.
There are a lot of people working on this to keep her safe and make sure this is lawful and to get things to Congress properly.
Frances couldn’t afford this stuff on her own. We’ve already paid out well over a quarter million dollars in this case.
But people don’t understand the significance until they see it in the media, and by then all the work has been done. And so unlike other charities where you can say, “We’re going to work on a project next year,” we can’t predict what we’ll be working on. That creates funding problems.