NationStates

Whereas whistleblowing should be protected, be it enacted as follows.

1. Definitions: The following is:
   
   
   1. "State" means member nation, or administrative or political subdivision thereof.
      
      
   2. "Entity" means public or private entity.
      
      
   3. An "authorised recipient" is a body receiving a Section 2 report under Sections 2, 5 or 7.
      
      
   4. "Consent" means positive, free, informed and written consent.
      
      
   5. No part of this resolution restricts the ability of member nations to jointly or severally create further protections for disclosure of unlawful, wrongful or otherwise illicit activity by an entity.
2. Agencies: A person (hereinafter "whistleblower") has the right to submit a bona fide report (hereinafter "report") not violating legal professional privilege of unlawful, wrongful or otherwise illicit activity by an entity to a body (hereinafter "agency") with authority over, and which is otherwise independent of, said entity. Every entity must have at least one agency in addition to any established at a higher state level. An agency has the following duties:
   
   
   1. Never (i) disclosing to any external person or group of persons the identity of any whistleblower submitting a report to that agency, subject to Section 3; or (ii) discriminating against a whistleblower based on any social categorisation protected by World Assembly or other applicable law as arbitrary or reductive;
      
      
   2. Promptly and fully forwarding any report which that agency lacks the authority to adequately address to another agency with such authority; the forwarding agency shall subsequently disclaim all authority under Sections 2c - 2e over the report;
      
      
   3. Promptly reviewing every other report the agency receives, and deciding whether to officially act against the reported activity, either immediately or after an official investigation by that agency, based on factors including the severity and likelihood of the reported activity;
      
      
   4. Reserving authority to (i) order the cessation of reported activity upon deciding to act against it; (ii) prosecute, or where the agency oversees a private entity only request the prosecution of, unlawful reported activity or failure to comply with a Section 2d.i order; and (iii) act as a mediator to address reports, conditional on the consent of all involved parties including the original whistleblower; and
      
      
   5. Authorising the publication of activity or evidence thereof reported under Section 2a, where (i) the information to be disclosed is demonstrably correct; (ii) the public has an interest in knowledge of such information which outweighs any compelling public interest against such disclosure, eg personal privacy or national security; and (iii) such disclosure does not violate the law of any jurisdiction the agency does not oversee.
3. Liability: Every agency shall be subject to a standard of respondeat superior; in addition to the official in question, an agency is criminally liable for violations of this resolution by an official of said agency. Section 2a's anonymity requirements may be waived only
   
   
   1. with the consent of the relevant whistleblower;
      
      
   2. for Section 2b forwarding of a report, in which case the entity to which the report is forwarded must comply with the same anonymity requirements; or
      
      
   3. to the minimal extent deemed essential by a tribunal or agency to facilitate an official investigation of (i) a likely violation of criminal or civil law or (ii) the reported activity.
4. Non-retaliation: No penalty, discriminatory treatment or other retaliation may be imposed upon any person for lodging a report, or upon any person or entity for publishing or circulating facts whose publication was authorised by an agency under Section 2e.
   
   
5. Direct reports: A report may be directly lodged with the entity responsible for the reported activity, in which case the entity must (a) comply with this resolution's anonymity requirements as if it were an agency and (b) forward the report to an actual agency under the procedure in Section 2b.
   
   
6. Advice: A prospective whistleblower has the right to request advice on how or whether to lodge a report from up to three individuals with the general expectation of confidentiality. A person who invokes this right shall be subject to the non-retaliation protections in Section 4, as if that person were lodging a report.
   
   
7. GDAA: The General Disclosure Appellate Agency (hereinafter the GDAA) is established as an agency with universal jurisdiction and prosecutorial powers. A whistleblower may directly submit a report to the GDAA should that whistleblower believe that a lower-level agency failed or is unlikely to appropriately address the report or reported activity. The GDAA shall directly process all reports lodged with it.
   
   
8. Contradiction: Should a provision of this resolution contradict a past World Assembly resolution still in force, that previous resolution takes precedence.

Discuss.

In the same numbering as your clauses:

Definition is very unclear on what constitutes whistleblowing. "Improper" is not illegal, different standards of proof apply.

1a. What is "likely" and "perceived" ? What if the information turns out to be misleading or untrue

2. Again, problematic if misleading information is released or information that turns out to be malicious.

3a. Having a tribunal examine some personal information after disclosure is after the horse has bolted, especially if the whistleblowing itself is public.

3b. Again, who is to judge whether something is of a national security nature? That's after disclosure. First Amendment will be a big issue here (I know you keep saying NS is not US, but hey)

4. Ditto about First Amendment

5. Again, after the horse bolted. And what about civil cases if the material turns out to be damaging to a third party? They can't sue?

Also can an organization that suffers from damage from false whistleblowing sue? Reputation damage etc. Especially from clause 1b but clause 1a as well.

Simone Republic wrote:In the same numbering as your clauses:

Definition is very unclear on what constitutes whistleblowing. "Improper" is not illegal, different standards of proof apply.

This is intentional.

1a. What is "likely" and "perceived" ? What if the information turns out to be misleading or untrue

2. Again, problematic if misleading information is released or information that turns out to be malicious.

Also can an organization that suffers from damage from false whistleblowing sue? Reputation damage etc. Especially from clause 1b but clause 1a as well.

My intent here is that if it's "misleading or untrue" (or "malicious"), I highly doubt that the revelation was indeed "bona fide" -- and even without that standard, then there's no actual activity being disclosed. I've amended the definition to make this more explicit -- does this address your concern?

3a. Having a tribunal examine some personal information after disclosure is after the horse has bolted, especially if the whistleblowing itself is public.

3b. Again, who is to judge whether something is of a national security nature? That's after disclosure.

I've removed the tribunal wording.

First Amendment will be a big issue here (I know you keep saying NS is not US, but hey)

4. Ditto about First Amendment

I don't care about whether this conflicts with some real-world law. Can you make your argument regarding "First Amendment" based purely on NS and the WA?

5. Again, after the horse bolted.

What do you suggest instead? That it not be penalised because it already happened?

And what about civil cases if the material turns out to be damaging to a third party? They can't sue

There's nothing in Section 5 saying that they cannot also sue, in addition to it being a criminal offense.

Is it "external whistleblowing" or "eternal whistleblowing"?

Also, I'm not entirely sure that second clause in (4) is necessary given your wording in the first clause in (4).

Hulldom wrote:Is it "external whistleblowing" or "eternal whistleblowing"?

Also, I'm not entirely sure that second clause in (4) is necessary given your wording in the first clause in (4).

Fixed the definition. I think it's good to have the prosecution requirement to help with good faith enforcement.

Bump.

The Ice States wrote:

Simone Republic wrote:In the same numbering as your clauses:

Definition is very unclear on what constitutes whistleblowing. "Improper" is not illegal, different standards of proof apply.

This is intentional.

Will oppose on this ground. I think the standard of proof is way too low.

E Mortimer Wellesley. Inasmuch as "said whistleblower" is the first instance of the word "whistleblower" in the proposal, it is clearly not the "said whistleblower". Legalisms have usage rules too.

OOC. I would highly recommend reviewing real world laws on whistleblower process and procedure. It generally works by allowing disclosure of classified or sensitive information to an independent or otherwise privileged institution (the titles are sometimes "ombudsman" or "inspector-general") who then acts on it. The important part is non-retaliation and secrecy to prevent retaliation. Disclosure to unprivileged groups is not permitted: a whistleblower is not fit in of himself to judge whether something's release is a threat to national security and release can regardless not be walked back, meaning that harms of disclosure cannot actually be cured.

Imperium Anglorum wrote:E Mortimer Wellesley. Inasmuch as "said whistleblower" is the first instance of the word "whistleblower" in the proposal, it is clearly not the "said whistleblower". Legalisms have usage rules too.

OOC. I would highly recommend reviewing real world laws on whistleblower process and procedure. It generally works by allowing disclosure of classified or sensitive information to an independent or otherwise privileged institution (the titles are sometimes "ombudsman" or "inspector-general") who then acts on it. The important part is non-retaliation and secrecy to prevent retaliation. Disclosure to unprivileged groups is not permitted: a whistleblower is not fit in of himself to judge whether something's release is a threat to national security and release can regardless not be walked back, meaning that harms of disclosure cannot actually be cured.

Also agree with the above.

1. That said, my long debate with Magecastle was more over private enterprises and whether say whistleblowing on "improper" office relationships (as an example) would be permitted, and whether that would harm the individuals at the end of the accusations?

2. What happens if the accusations are bona fide believed to be true by the whistleblower but turns out to be false? How is the damages supposed to be cured?

I will address the comments by IA over the next few days, but regarding 2 above, it must be both "bona fide" and "truthful" to fall under the definition -- just being one is irrelevant if it's false.

Magecastle Embassy Building A5 wrote:I will address the comments by IA over the next few days, but regarding 2 above, it must be both "bona fide" and "truthful" to fall under the definition -- just being one is irrelevant if it's false.

In *whose* judgment is it truthful? Why would the whistleblower know? Don't you need a court process to determine facts?

Simone Republic wrote:

Magecastle Embassy Building A5 wrote:I will address the comments by IA over the next few days, but regarding 2 above, it must be both "bona fide" and "truthful" to fall under the definition -- just being one is irrelevant if it's false.

In *whose* judgment is it truthful? Why would the whistleblower know? Don't you need a court process to determine facts?

Being found innocent by a court is not a penalty.

The Ice States wrote:

Simone Republic wrote:
In *whose* judgment is it truthful? Why would the whistleblower know? Don't you need a court process to determine facts?

Being found innocent by a court is not a penalty.

Having someone's reputation dredged through the mud before being found not guilty is still career damaging. Ask Johnny Depp/Amber Heard or Kevin Spacey.

Magecastle Embassy Building A5 wrote:I will address the comments by IA over the next few days, but regarding 2 above, it must be both "bona fide" and "truthful" to fall under the definition -- just being one is irrelevant if it's false.

OOC. A whistleblower isn't normally privy to everything. The example of that guy who whistleblew (legally and through proper process) on UFOs comes to mind. Assuming ad arguendo that aliens do not in fact exist, are not in fact visiting Earth, and are not in the possession of various world governments, your proposal doesn't protect him because it isn't truthful.

The reason why most whistleblower laws premise this on disclosure to a privileged institution or party is to sort out things like truth and (possible) public disclosure of relevant information. Showing something to be true or false when it relates to classified operations also could require disclosure to the trier of fact substantial amounts of other classified material. I'm uncomfortable with such a messy and leak-prone post hoc mechanism.

Ooc: I've posted a new draft which almost entirely changes the approach of the draft. As a result, the draft is currently at exactly 5000 characters, and so the preamble has been removed.

Edit: I've effected some rewrites which cut down on character count a bit, so it's still on 5k characters but I've manged to squeeze in a short preamble.

Would appreciate any more comments.

On Article 2a(ii): What "compelling practical purposes" (GA#35) could an agency utilise to discriminate against a whistleblower on their arbitrary and reductive characteristic(s) were this Article not to exist?

* * * * * * * * * *

On Article 6: This article contains no guardrails. A prospective whistleblower can ask his wife, their two-year-old toddler, and the guy who serves beer at the local pub for "advice on how or whether to lodge a report... with the general expectation of confidentiality." Then he tells his boss. Either he can hide the fact he has asked three people already (and lie about the extent he has utilised his right to advice), or he can admit he has asked three people for advice (and thereby risk having his boss tell everyone else he's planning on doing a report; anonymity and non-retaliation is only guaranteed to actual whistleblowers). The situation also gets murky on the off-chance he raises the whistleblowing question at a large group meeting that itself has a confidentiality expectation.

* * * * * * * * * *

On Article 7: It can be removed without causing any damage to the outlined whistleblowing procedure. Why?

• Under Article 5, member states must process whistleblowing reports where consent to distribute it to the employer is denied.
• If consent is granted and the employer handles the report in compliance with Article 2, then no offence under WA law is committed.
• If consent is granted and the employer does not handle the report in compliance with Article 2, then under GA#390, whistleblowers can report their employers' failure to handle reports according to Article 2's guidelines to the police, and the police will then use their WACC liaison point to instigate an IAO hearing per GA#440. (Should there be any concerns that GA#440 does not apply to private employers because it only explicitly mentions the state, it can be reasonably argued that in such cases, the state has failed to ensure that the employer did not comply with WC's Article 2.)
• If consent is denied, the member state must directly investigate the report. If the member state's investigation complies with Article 2, no offence is committed. If the investigation does not comply (or simply never happens), a police report can be filed against the state, and the police will follow the report up with the WACC. The WACC will then bring a hearing with the IAO, and in such an event, the legal grounding for fines and sanctions is even clearer.
• Therefore, every investigation into whistleblowing will either comply with Article 2, or it constitutes non-compliance with WA law (i.e. a crime that can be reported to the police, who will report it to the WACC, who will report it to the IAO, who will decide on sanctions). In either case, there is such a strong incentive for the member state or employer to investigate the report adequately that the GDAA will never be a necessary backstop.

Still likely to strongly oppose on the grounds that the definition of "improper" introduces issues regarding what constitutes improper, and the lack of means for those subject to malicious whistleblowing behaviour to counter-sue. Whistleblowing by default allows someone to hide behind secrecy to make accusations that, if it turns out to be baseless, damages the reputation of those accused and clause 4 in your draft specifically makes it impossible for those accused to countersue.

Also I don't buy a non-judicial authority (GDAA) being in charge of everything to do with whistleblowing. It's basically WA police redux.

Tinhampton wrote:On Article 2a(ii): What "compelling practical purposes" (GA#35) could an agency utilise to discriminate against a whistleblower on their arbitrary and reductive characteristic(s) were this Article not to exist?

Priotising the most urgent requests, for instance. I'm not too keen on relying on a weak resolution which does nothing here.

On Article 6: This article contains no guardrails. A prospective whistleblower can ask his wife, their two-year-old toddler, and the guy who serves beer at the local pub for "advice on how or whether to lodge a report... with the general expectation of confidentiality." Then he tells his boss. Either he can hide the fact he has asked three people already (and lie about the extent he has utilised his right to advice), or he can admit he has asked three people for advice (and thereby risk having his boss tell everyone else he's planning on doing a report; anonymity and non-retaliation is only guaranteed to actual whistleblowers). The situation also gets murky on the off-chance he raises the whistleblowing question at a large group meeting that itself has a confidentiality expectation.

This should be fixed.

On Article 7: It can be removed without causing any damage to the outlined whistleblowing procedure. Why?

• Under Article 5, member states must process whistleblowing reports where consent to distribute it to the employer is denied.
• If consent is granted and the employer handles the report in compliance with Article 2, then no offence under WA law is committed.
• If consent is granted and the employer does not handle the report in compliance with Article 2, then under GA#390, whistleblowers can report their employers' failure to handle reports according to Article 2's guidelines to the police, and the police will then use their WACC liaison point to instigate an IAO hearing per GA#440. (Should there be any concerns that GA#440 does not apply to private employers because it only explicitly mentions the state, it can be reasonably argued that in such cases, the state has failed to ensure that the employer did not comply with WC's Article 2.)
• If consent is denied, the member state must directly investigate the report. If the member state's investigation complies with Article 2, no offence is committed. If the investigation does not comply (or simply never happens), a police report can be filed against the state, and the police will follow the report up with the WACC. The WACC will then bring a hearing with the IAO, and in such an event, the legal grounding for fines and sanctions is even clearer.
• Therefore, every investigation into whistleblowing will either comply with Article 2, or it constitutes non-compliance with WA law (i.e. a crime that can be reported to the police, who will report it to the WACC, who will report it to the IAO, who will decide on sanctions). In either case, there is such a strong incentive for the member state or employer to investigate the report adequately that the GDAA will never be a necessary backstop.

Simone Republic wrote:Also I don't buy a non-judicial authority (GDAA) being in charge of everything to do with whistleblowing. It's basically WA police redux.

The GDAA is remaining, inasmuch as I do not believe in magical compliance. Non-compliance is absolutely a thing, and a violation may be sufficiently de minimis that they would not report it to the police, yet still may seek an appeal mechanism; or even that the IAO does not deem the situation sufficient to enact a substantial fine. As long as non-compliance exists, I believe there should be a mechanism to remedy the matter without having to immediately resort to fines and sanctions. Now, this is ignoring the existence of the "is unlikely to" qualifier. If some violation is reported to a member nation's agency, what happens if the whistleblower fears persecution as a result? Other than forcing the whistleblower to still report to the member nation's agency -- which in fact is more likely to discourage reports than achieve anything -- it seems reasonable to allow the whistleblower to directly go to a higher-level agency they need not fear persecution by.

Bump.

If I've some time, I'll take a look at this.

Bump.

I am pretty happy with how this has turned out and so I am marking this on last call. Speak now or forever hold your peace.

The Ice States wrote:I am pretty happy with how this has turned out and so I am marking this on last call. Speak now or forever hold your peace.

You should have been around long-enough to know that there's no such thing as "forever hold your peace" in GA. There's something called, cough.... insta-repeals.

Anyway, as discussed extensively on Discord over the last two days, I plan to draft a separation on comprehensive compensation for the wrongfully accused, over and above existing resolutions.

My main objections to the existing proposal are on that:

1. that there is no recourse for anyone wrongfully accused, the fact that the whistleblower can end up being wrong (or that the agency investigating can turn out to the wrong) for example (but I intend to rectify that separately)

2. I think the definition of "improper" is too broad but it does not seem Magecastle will accept dropping that word, and I can't think of something that he would accept

3. The GDAA becomes a third world court which I think will be hard to swallow (IAO, WACC/WACC-JC)

For those interested in the long-winded Discord discussions:
https://discord.com/channels/2344730526 ... 7609782343