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Facebook whistleblower isn't protected from possible company retaliation, experts say

Scott Pelley of CBS is set to interview a Facebook whistleblower on <em>60 Minutes </em>on Sunday, revealing for the first time the ex-employee's identity.
Scott Pelley of CBS is set to interview a Facebook whistleblower on <em>60 Minutes </em>on Sunday, revealing for the first time the ex-employee's identity.

Updated October 1, 2021 at 12:45 PM ET

A Facebook whistleblower who provided tens of thousands of internal documents to federal regulators that reportedly show that the company lied about its ability to combat hate, violence and misinformation on its platform is set to reveal her identity in a nationally broadcast interview Sunday on CBS.

The same ex-Facebook employee plans to testify Tuesday before Congress about the company "turning a blind eye" to harm caused by its products, including the impact on teens' mental health.

As the public anticipates hearing directly from the whistleblower, who is believed to have provided The Wall Street Journal with documents as part of its Facebook Files series, a question is stirring debate: Will Facebook retaliate?

The prospect was put in sharp focus on Thursday.

Facebook executive Antigone Davis was asked in a Senate hearing about possible reprisal, and Davis said the company will not retaliate against the whistleblower for addressing Congress.

That was an incomplete response that left many wondering what she was leaving on the table.

"There's a pretty significant omission there that you can drive a truck through," said Eric Havian, a San Francisco lawyer who represents whistleblowers. "They are certainly leaving themselves open to going after this person for exposing confidential information to the news media."

While federal whistleblower protections can provide a shield when a current or former employee cooperates with regulators or lawmakers to expose wrongdoing or a cover-up, obtaining confidential corporate records and sharing them with the press is legally precarious, potentially opening the individual up to legal action from Facebook, according to three whistleblower lawyers who spoke to NPR.

"Problems do arise when you take information and provide it to the press," said Lisa Banks, a longtime Washington whistleblower lawyer. "That's where you can get in trouble with their employer or the law."

A Facebook spokesman declined to comment.

Lawyer Andrew Bakaj, who represents the whistleblower, said in a statement to NPR that Facebook should think twice before targeting his client.

"We have made lawful, protected disclosures to the Securities and Exchange Commission and to Congress. Such disclosures are protected both by law and Facebook's own internal policies," Bakaj said. "Retaliating against a whistleblower is not only unlawful, it will have a chilling effect on future whistleblowers, something I would expect both the SEC and Congress to take seriously."

Whistleblower lawyers not involved with the Facebook case said the company could pursue a breach of contract suit if the ex-employee signed a nondisclosure agreement, a type of contract that is common in Silicon Valley.

A defamation suit in connection with the disclosure of the documents is also possible or even breach of fiduciary duty, if the whistleblower was in an executive position, according to the legal experts.

"Corporations have rights and interests," said Gregory Keating, who represents employers in whistleblower suits.

"There appeared to be attorney-client privileged documents in what was shared with the press," he said. "That's not something you can just disclose willy-nilly."

In recent weeks, Facebook has been reportedly clamping down on internal leaks and attempting to determine the source of disclosures to the media that result in coverage that is damaging to the company.

At the same time, taking aim at a former employee who turned to regulators and the media to reveal secrets that Facebook strenuously attempted to keep under wraps would be bad for its public image, according to the whistleblower attorneys, who noted that Facebook is also on the defensive from being under regulatory pressure in Washington.

"Her greatest protections are actually non-legal," said lawyer Havian of the Facebook whistleblower. "Simply that Facebook is trying really hard to present itself as a good citizen, and it doesn't burnish that image when you go after people who do nothing more than reveal the truth of what's going on at the company."

Banks, the Washington lawyer, agreed.

"As a matter of optics, it could be disastrous for Facebook," she said. "But they seem not to care about that, and they are not very adept at avoiding disastrous optics."

Some of the documents obtained by the whistleblower were reportedly shared with the Securities and Exchange Commission and Congress, in addition to being provided to the Journal.

Keating said going to the SEC is the safest course for someone looking to expose a corporation through confidential material. But he said the lack of legal protections around providing the media with such documents puts whistleblowers who work with the press in a dicey situation.

"Facebook could pursue legal action and say, 'We don't have a problem with you going to a government agency, but going to the national press is a violation of an agreement you signed,'" Keating said.

Most whistleblowers, Banks said, are keenly aware of the inherent risks of speaking out or sharing documents with the goal of bringing about more transparency or prompting change.

"That's why," she said. "Whistleblowers are extraordinarily brave."

Editor's note: Facebook is among NPR's financial supporters.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Corrected: October 1, 2021 at 12:00 AM EDT
In a previous version of this story, at one point we say Eric Havian represents companies. He is known for defending whistleblowers.