Frequently, would-be whistleblowers lack the resources or the know-how to report effectively on improper business practices. Is “going public” a last resort, to be used only after internal reporting procedures have been exhausted? Is internal whistleblowing preferred to external (Vinten 1994)? Even in instances when these issues are less ambiguous, the whistleblower may nevertheless “think twice” in the face of likely organization retaliation. Public service law firms, consumer groups, institutional reforms, and legislative action have at various times and in different ways undertaken to fight unjust reprisals visited upon the whistleblowers. Now the Internet seems to be used in a similar manner [1], namely, to combat illegitimate retribution and, more generally, to promote or otherwise influence the practice of whistleblowing.

This paper summarizes the research and discussion of a panel of Saint Louis University scholars [2] examining how information technology and the emergence of the Internet have provided new dimensions along which to consider the phenomenon of whistleblowing. The following sections, representing the various contributions of the panelists, focus on (1) the ethics of whistleblowing, (2) Internet resources for whistleblowers, (3) actual websites developed or inspired by individual whistleblowers, and (4) how law firms now prospect for whistleblowing clients to file under the False Claims Act.

Duska (1997) objects to this approach in which whistleblowing is primarily framed as an act of disloyalty, one that needs justification or that can be pursued only under special circumstances. It is, writes Duska, “as if the act of a Good Samaritan is being condemned as an act of interference, as if the prevention of a suicide needs to be justified “ (p. 335).

The flaw, for Duska, is found in the notion that individuals should be loyal to a company. Simply put, a company is not a person and not, therefore, deserving of loyalty. While a company typically consists of people, it is not a group of people with a purpose that transcends self-interest. Loyalty, according to Duska, exists in the context of human relationships and entails a readiness to engage in sacrificial behavior. “A company is...an instrument with a specific purpose, the making of profit. To treat an instrument as an end in itself...does give the instrument a moral status it does not deserve” (p. 338).

May (1996) also takes up the relationship between the individual and the organization as an important determinant of personal responsibility and conscience. Drawing on Arendt’s work, May suggests that the socialization of individuals within large bureaucratic organizations can effectively dull ethical sensitivities. The constant press of institutional priorities can distort the perspective of employees, who, in turn, may sense that they are powerless or irrelevant in the face of the bureaucratic decision-making apparatus. May explains:

[I]nstitutional socialization in bureaucracies transforms individuals into cogs, that is, these individuals come to think of themselves as anonymous. As anonymous cogs, they lack the face-to-face confrontation with one another, and with the consequences of their actions, that is necessary for a developed sense of responsibility. Lacking this personal dimension in their institutional lives, they are likely to lose their sense of responsibility in institutional settings as well (p. 71).

In this bleak institutional context, whistleblowing would seem to be an act of remarkable moral courage. Indeed, this analysis suggests that if whistleblowing is dependent solely on individual conscientiousness or self-sacrifice in the face of bureaucratic indifference or retaliation, then such acts will remain relatively rare. May recognizes the need for a countervailing force beyond an individual’s inner resources that would bolster socially responsible behavior. He argues that a person’s integrity and moral responsibility must be shaped and supported by relevant communities and associations that provide a context for socially responsible behavior and professional ethics. This communitarian ethic might then impact how individuals perceive their moral responsibilities and support a conception of whistleblowing, not as an act of disloyalty, but as an act of virtue.

The information provided at each of the sites varies greatly in scope, focus, and quality. For example, there are several websites that are designed by government agencies to provide information about whistleblowing with regard to the areas under their regulation. California's Bureau of State Audits tells how to access the state Whistleblower Hotline (http://www.bsa.a.gov/bsa/hotline.html). At the federal level, the Department of Energy has posted information about protection for whistleblowers (http://www.whistleblower.org/www/wbinit1.html).

A number of what appear to be watchdog organizations provide "how to" information as well as encouragement for whistleblowers. The Government Accountability Project (http://www. whistleblower.org/) provides a list of survival tips for whistleblowers, advice about how to get started on the process, as well as descriptions of various retaliatory techniques that might be used against the whistleblower, and the Center for Government Accountability (http://www.geocities.com/CapitolHill/Lobby/3486/) publishes "The Whistleblower's Gazette," which takes up various issues related to governmental whistleblowing. A consulting group offering investigative and other services related to qui tam actions maintains a “Whistleblower Mall” (http://www.quitam.com/barg5.html), detailing organizations that it believes “can help you successfully blow the whistle in various areas.”

Whistleblower.Com (http://www. whistleblower.org/) identifies organizations and provides links through its website. Other websites have been developed by individuals so that they can tell their own stories or to provide a forum for others' stories. Chris Griffith's Whistleblowers Page (http://www.powrup.com.au/-chris/whistle.html), for example, tracks the cases of whistleblowers as they progress.

Review of these kinds of websites highlights some very interesting themes reflecting underlying ethical issues. For example, we see encouragement and moral support for what is perceived as a long, hard fight with the odds against the whistleblower. Clearly the whistleblower is challenging a formidable organization in society, whether it is a government or corporate entity. This raises the image of David and Goliath and the perils associated with such a challenge. Writers of websites appear to be very realistic about the risks associated with such an undertaking. At the same time, however, there is great detail about how to develop a careful strategy for whistleblowing. The titles reflect the reality—the term “survival” is frequently used. This emphasizes the reality of one individual's sacrifice for what he or she perceives to be the greater good, and a true dilemma for the whistleblower.

In addition to the encouragement for the power of the "little guy," we also see an appeal to the values of truth and honesty. For example, there is considerable rhetoric about the role that whistleblowing, or the threat of it, plays in keeping government and businesses honest. Rights of free speech and the value of open, public scrutiny of government and business practices are raised in this context. However, there are also admonitions for whistleblowers to be truthful and factual in their presentations of information to the public.

The importance of being involved rather than remaining a bystander is a prevalent theme. The Center for Government Accountability reminds readers that we live in a delicately balanced world that requires individuals' commitment to improve it, cautioning against neglect and ambivalence.

Another encouragement for taking on the whistleblower's role, somewhat related to the call for involvement noted above, are appeals to patriotism or the welfare of the community. For example, the Department of Energy's site notes the importance of whistleblowers' contributions to protect "their colleagues, neighbors, and the American taxpayer.”

One of the contributions from the Government Accountability Project builds on the notion of moral commitments, confronting the ethical dilemma spawned by a conflict of loyalties. The writer notes that loyalty to one's family, in the face of the career risks associated with whistleblowing, are in conflict with what is seen as a duty of loyalty to the public trust, to the law, and to the community. It is interesting to note that there is much more emphasis on the fact that the whistleblower is doing the right thing, as opposed to merely legal. While this is obviously a stronger approach to personal convictions about right and wrong, it is also a recognition that the legal protections are really not adequate to offset the potential personal and professional jeopardy.

The Government Accountability Project goes on to raise another tough ethical issue: Is silence complicity? Does an individual give assistance, if not tacit approval, if he or she doesn't speak out about wrongdoing? Several other sites use this point to persuade and encourage whistleblowers. Some even appeal to the sense of guilt one would feel if illegal or dangerous behaviors were to continue unchecked.

Throughout the websites reviewed, there is a theme of caution. While there is general encouragement from all for the practice of whistleblowing, these sites are not inciting rash action. Rather, they provide information and rationale for whistleblowing activity, recognizing the tough choices that whistleblowers face.

Support—past, present, and future—is a theme developed by many whistleblowers on the web. Official letters of support and corroboration are posted, as are the names of supportive organizations and legal counsel. Communication with and support from visitors to the website is earnestly solicited. Several sites feature guestbooks which visitors can sign and use to post comments. At another site, form letters are available so that visitors may send letters—via email, of course— to various government officials (including the President) in support of the whistleblower’s cause.

Nearly all whistleblowers on the web make clear that their action has exacted a considerable toll. Frequently they have lost jobs and suffered other indignities. These accounts are often compelling:

Because I saw what was blatant fraud and reported it, my life has now become a living nightmare. I am now suffering from severe injuries sustained form retaliation...I am now unemployed, bankrupt, I have no retirement, and I am almost out on the street.

Nearly all whistleblowers on the web seem compelled to explain what they have done and what it has cost them. They may advise other potential whistleblowers, using their own experience as a cautionary tale. They want others to understand their story—what motivated their actions, the crucial incidents and episodes, and its lessons. Some harbor the hope that others will offer their support—in whatever form. The deeply personal character of the websites is reinforced by family pictures and other idiosyncratic features. The authors are often critical of the enforcement of laws as well as the procedures designed to aid and protect whistleblowers.

5. Whistleblowing and the False Claims Act

The Federal False Claims Act (subsequently 31 USC 3729, et seq.) was enacted by Congress during the Civil War period (1863) in an effort to address rampant military procurement fraud and other fraudulent attacks upon the national treasury. The so-called qui-tam provision of the law gave private citizens the standing to bring an action on their own behalf as well as for the U.S. government. This provision has evolved to become today’s “whistleblower’s” action of choice. The qui tam action is not criminal, although there may be a parallel criminal actions brought by the Department of Justice.

The burden of proof and standards of evidence are what is expected for any other action in the Federal system. The elements which need to be proven to the court include: (1) that the Defendant has knowingly and willingly presented a false or fraudulent claim to the government; or (2) knowingly and willfully made a false record or statement in order to get an otherwise false or fraudulent claim paid; or (3) conspired with another to defraud the government by getting a false or fraudulent claim paid; or (4) made a false or fraudulent claim in order to reduce or otherwise decrease an obligation to the government.

Should Plaintiff succeed in proving any of the elements noted above the Defendant is liable for a civil penalty of at least $1,000 but no more than $5,000 for each such offence. In addition the Defendant shall be liable for three times the damages proved. Thus, if the Plaintiff proves fraud in the amount of $1,000,000, then the Defendant is liable for $3,000,000. Total potential liabilities for Defendants can run into the tens or hundreds of millions. For example, in Rabushka ex rel United States vs Crane Corporation (8th Circuit), the Plaintiff claims that Defendant knowingly made a false statement as a part of a public offering of securities which subsequently caused an agency of the United States (i.e., the Pension Benefit Guarantee Corporation) to become liable for approximately $8,000,000 in claims. Here it is clear that the potential penalty of $1,000 to $5,000 pales to insignificance when compared to the total $240,000,000 in damages for which the Defendant may be ultimately liable.

Recovery for the whistleblower is provided for in the Act and ranges from 15% to 25% of total recovery plus reasonable attorneys’ fees. Clearly, there may be a substantial monetary incentive for the whistleblower, but it must be emphasized that these monetary incentives are not only limited to those who are “directly and personally” knowledgeable of the act(s) at issue, but also that literally years may pass from filing the action to trial and, perhaps, additional years while the appeals process is exhausted before any monetary recompense is forthcoming--and this provided the Defendant has not become bankrupt in the process.

The potential of a large financial settlement for the relator (i.e., the person who has commenced a qui tam action) and the relator’s legal counsel has no doubt contributed to many law firms now prospecting on the web for whistleblower-clients to file under the False Claims Act. Frequently, these legal sites appear to be designed in part to appear as an impartial source of reference. One law firm maintains a site whose homepage is entitled “The False Claims Act Resource Center” (http://www. falseclaimsact.com/). The site does in fact offer summaries of the law pertaining to the False Claims Act and recent developments in qui tam litigation. Such summaries are common features at other websites and frequently stress the work that the particular law firm has done and the size of the monetary settlements won. Most of the sites have a section on “What to Do if You Think You May Have a Qui Tam Case.”

Typically one finds a carefully crafted submittal form for individuals who may have such a case or desire more information. Potential relators are advised of the "first to file" rule [4] and that if the allegations are somehow disclosed before a relator files suit, he or she could be precluded from any recovery. One law firm attaches to its submittal form the following warning: “Do not send any substantive information about your potential case over the Internet because it is essential that your information be kept confidential. The Internet is a public forum. By definition, information transmitted over the internet is NOT confidential.”

Websites such as these contain valuable information and facilitate legal action. At the same time this activity raises its own ethical issues and further complicates consideration surrounding whistleblowing and its motivation.

6. Conclusion

Cyberspace provides a new dimension along which to examine whistleblowing. The web offers a wealth of information on whistleblowing, although the quality and source is in many instances somewhat uncertain. Whistleblowing continues to be portrayed as a solitary, even heroic act. And while legal sites may emphasize that large economic rewards are possible for the whistleblower, the costs of whistleblowing are vividly presented, typically by the whistleblowers themselves. The Internet affords whistleblowers with an opportunity to again make their case, and in so doing, to perhaps pursue ends that are variously altruistic, self-serving, and even therapeutic.

[fnA]

[2] The authors acknowledge the support of Saint Louis University’s Emerson Electric Center for Business Ethics.

[3] Many of the websites discussed in this section are linked with the Government Accountability Project at http://www.whistleblower.org/www/Connections.htm.

[4] Only the first relator to file a claim has the ability to share in the recovery. A subsequent relator is precluded, even if he or she had equal or superior knowledge than the first relator.

References:

Bok, S.: 1980, “Whistleblowing and Professional Responsibility,” New York University Education Quarterly, 11, 2-7.

Bowie, N.: 1982, Business Ethics. (Prentice-Hall, Englewood Cliffs, NJ).

Duska, R.: 1997, “Whistleblowing and Employee Loyalty,” in Ethic Theory and Business , T. Beauchamp and N. Bowie, Eds. (Prentice-Hall, Upper Saddle Rive, NJ).

Vinten, G.: 1994, Whistleblowing: Subversion or Corporate Citizenship? (St. Martin’s Press, New York).