Is Whistleblowing Civil Disobedience?

The case of Edward Snowden provoked a wide academic discussion on the question of whether whistleblowing is an act of civil disobedience. The opinions are divided: while some, like Danah Boyd for instance, are clear that “Whistleblowing is the New Civil Disobedience” other academic discourses are more ambivalent on this question. I do consider Snowdens revelations to be whistleblowing as well an act of civil disobedience. The reasons for my assessment lead to a discussion that extends the format of a blogpost, but I would like to present some more general thoughts on the question what whistleblowing and civil disobedience have in common.

First of all: What would Snowden gain if his act was considered civil disobedience? Civil disobedience is not a legal term in the sense that anyone can be punished for an act of civil disobedience, neither has anyone a legal right to commit civil disobedience. Philosophers like Dworkin demanded that courts refrain from imposing criminal penalties for civil disobedience, but there is no law that sustains this philosophical demand. A legal advantage is therefore speculation and only indirectly relevant.

A minimal common understanding of civil disobedience defines it as a form of principle-based protest, which is carried out by intentionally breaking the law and aims to influence laws or political measure (compare Celikates 2010: 280). But even though this minimal definition was intended to separate the definition of civil disobedience from the debate about its legitimacy, the term civil disobedience implies a normative connotation. By saying something is civil disobedience, the implication is most usually that this action is morally justified and therefore legitimate. What Edward Snowden would gain therefore is first of all not a legal cause but a symbolic argument. Symbolic does not mean “unimportant” – quite the opposite: this symbolic argument is of great importance for today’s understanding of which political actions are legitimate in a democracy in general. Excluding Snowdens act from the definition of civil disobedience at the same time denies its moral legitimacy – and that is what this controversy is mainly about.

Now to whistleblowing: In his dissertation, Manohar Kumar derived six inherent elements of whistleblowing from a comparison of previous existing definitions to explain what it means to blow the whistle:

“i) it is a deliberate act, ii) often done by an insider having access to information and an expertise in assessing the information; iii) the information is directly related to threats to citizens’ rights, their obligations or harm the public interest; iv) it is assumed by the whistleblower that withdrawing such an information from the public is a grave wrong done to the citizens; v) the information is such that the public ought to know, and vi) it is in form of appeal to the higher authorities, through publicity, with an intention to generate public pressure to correct the wrongs done. “ (Kumar 2013: 129f)

It is important to stress that being a whistleblower is not defined by law (this is an argument I often came across speaking to legal scholars). The fact that whistleblower protection does not apply for specific cases (such as Snowden) does not make anyone less a whistleblower in terms of the definition above – it rather shows that laws insufficiently catch up with political reality.

But what has Whistleblowing to do with civil disobedience? Whistleblowing and civil disobedience are not the same, but both political strategies share an intersection for which both terms apply. The fact that in some countries laws for the protection of Whistleblowers are implemented does not imply that whistleblowing is therefore always legal. Whistleblowing in general is prohibited if it violates a contract – only in specific cases the whistleblower enjoys protection which is applied in retrospective. In cases where whistleblowing demands an act that intentionally breaks the law and is based on political principles and goals (and not on personal gain) it can be considered a special kind of civil disobedience.

Kumar calls whistleblowing an act of “epistemic disobedience” and explains:
“Civil disobedience, under secrecy, has an epistemic character. Its need arises out of the informational asymmetry between the executive and the citizens. We can call it epistemic disobedience. We can define epistemic disobedience as an illegal act, done on behalf of others, to expose the wrong done under conditions of secrecy, with an intention to bring about change.” (Kumar 2013: 157)

Most acts of civil disobedience address an injustice which is obvious to the public, so a process of deliberation about this issue is possible. Whistleblowing is epistemic disobedience because the act of whistleblowing itself eventually enables this process of deliberation by changing what we can know about the injustice the whistleblower reveals. Secrecy comes with the risk of institutional, governmental or private actions which might not be approved by democratic procedures – but it prohibits the public of even realizing its existence. This does not mean that secrecy in governance is never appropriate. It is the dilemma of secrecy that the public can’t decide weather or not it is necessary. Even more so, Whistleblowing as epistemic disobedience is an important political practice that helps to balance this intrinsic dilemma.

Recent developments suggest, that with his revelations about the NSA Edward Snowden wont stay alone as a whistleblower. Instead his cause seems to be supported by at least one other individual who steps forward with shocking insider information about the NSA’s surveillance. Most often, whistleblowers take actions alone, at high risk and with consequences such as financial ruin or social exclusion. Edward’s Snowdens fate, is not only an individual question, but a paradigmatic one of our time. The encouragement, acceptance, support and protection of whistleblowers are key in a world where information is a core value. How we deal with whistleblowing will be decisive on how democratic the societies that we live in will be.

This post is part of a weekly series of articles by doctoral candidates of the Alexander von Humboldt Institute for Internet and Society. It does not necessarily represent the view of the Institute itself. For more information about the topics of these articles and associated research projects, please contact presse@hiig.de.