Wednesday, June 19, 2013

Why all these whistleblowers recently?

Whistleblowing, this obscure practice discussed in most business ethics textbooks (we do so in Chapter 7), has become a big topic of discussion these days. The latest incident is Edward Snowdon and his revelation about the ongoing surveillance of phone and internet usage of American citizens by the US government. But he is not alone: currently on trial is Bradley Manning, who provided Wikileaks with the material for exposing the diplomatic correspondence of the US government.

The general contention with whistleblowing is becoming clear in both cases: are these individual traitors who defaulted on their duties by breaching the rules and codes they had agreed to abide by when entering their job? Or are they ‘heroes’ whose behavior is governed by higher, more general, and persistent ethical standards than their day-to-day job environment would allow them to follow?

It is useful to look at some historic cases of whistleblowing – and indeed cases, where certainly by hindsight the general agreement seems to be that the whistleblowers are in the second category of ‘ethical hero’. Think of Jeffrey Wigand, the executive of tobacco company Brown&Williamson who exposed the practice of enhancing the addictive potential of cigarettes of his employer (famously turned into the movie The Insider). Or think of Sherron Watkins, who initially blew the whistle on the practices at ENRON and contributed to the uncovering of the scandal in 2001. Turning to the political sphere, currently many references are made to Daniel Ellsberg who in 1971 leaked the ‘Pentagon Papers’ disclosing that the US government for years had systematically mislead the public about the impact, casualties and costs of the Vietnam war.

Whistleblowing commonly seems to occur in a situation where the moral status of organizational practice – be it a private company or a public institution such as the NSA or the Pentagon – deviate from the wider moral values which society deems appropriate. And crucially, it has to be added, these actions also deviate from the professed moral standards of the organization against which those individuals blow the whistle.
This is rather evident in the case of Ellsberg: by the early 1970s, the public in the US all long thought that the war in Vietnam had lost its moral cause; his revelations proved that the US government, too, was all along aware that what it did in Vietnam no longer could live up to the public mission and norms according to which the American government professed to act. Similar are the cases of Wigand and Watkins: in the same way the Tobacco industry outwardly professed that they were not aware of the addictive impact of cigarettes, ENRON had always claimed to be an ethical company. The same applies to the current Manning and Snowdon cases: Obama ran on the promise to stop the abuses by the previous Bush administration and to restore basic civil liberties – and is now found out to do the same or worse.

The dilemma of whistleblowers all points to the fundamental differentiation established by Max Weber a century ago: Members of a social group (incl. an organization) can act according to an ethics of responsibility or according to an ethics of conviction. The first looks at the consequences of an action and basically suggests that a virtuous individual is one that lives up to the expectations of all who are affected directly by the consequences of an action. In practice, this boils down to abiding by the rules and procedures of the organization. The main arguments against whistleblowing then all come in the shape of what the effects of the revelations are on other people (that was the big argument against Wikileaks) or how it affects the general functioning of a secret service where everybody potentially can leak anything (the current debate on Snowdon).

What justifies whistleblowing then is Weber’s ethics of conviction according to which an individual makes an ethical choice based on personal moral convictions. The act is based on principles, rather than anticipated consequences. In most cases whistleblowers refer to general principles of either good business practice regarding customers (the tobacco case) or shareholders (ENRON) or good government based on some basic democratic principles (such as the Ellsberg, Manning or Snowdon case).

Historically, such reasoning based on an ethics of conviction always becomes more relevant at a time when fundamental values of society are in question and challenged. The Vietnam war raised basic questions about the moral limits of the cold war; the tobacco scandals exposed the lack of basic moral rules of consumer protection; ENRON initiated the ongoing moral scrutiny of a shareholder value dominated form of capitalism; the Manning and Snowdon cases now raise fundamental moral questions about civic liberties, civic rights to privacy and protection of personal data and the appropriate powers of the state in protecting these liberties.

It is somewhat tragic – as probably the cases of Ellsberg and Wigand best illustrate – that whistleblowers are mostly recognized as moral, conviction-driven human beings quite some time after the events. At the time of the whistleblowing defenders of the status quo always wield two crucial tools: they can either invoke arguments following an ethics of responsibility and point to the potential harm and the anarchic nature of the act; Bradley Manning’s trial can be followed as a textbook example of this reasoning.

Or, they can try to discredit the ‘convictions’ of the whistleblower. Since these often reflect a wider moral consensus in society it is hard to attack those principles or norms directly. More effective seems to be an approach that discredits the whistleblower on a personal level. In Ellsberg’s case the CIA broke into his psychiatrist’s office to obtain information on his mental health and love life; in Wigand’s case a similar smear campaign was initiated. Currently with regard to Edward Snowdon, it is conspicuous how the entire political spectrum in the US is more or less embarking on this trajectory. From Bill Maher’s jokes last Friday night on Real Time to David Brook’s notorious profile in the New York Times - most seem eager to present him as some sort of self-aggrandizing nerd.

Whistleblowers turn up at a time when societies or organizations are deviating from commonly accepted and widely shared moral values. Whatever our concrete judgment about individuals and their motives - the fact that whistleblowing occurs at this point in history clearly points to a wider epiphany. Ironically, Snowdon relocated to the very country which for so long has been accused by the West of not respecting the human rights of their citizens in exactly this issue arena – much to the distress of Google, Yahoo or other companies. It looks like Obama currently has a bit of a hard time to explain to China, Russia or even his European allies, how his approach to privacy and data protection still reflects basic values of liberal democracies.

Picture by DonkeyHotey, reproduced under the Creative Commons License.

Monday, June 3, 2013

Canada's corruption problem

Barely a day goes by at the moment here in Canada without a new twist or turn in a corruption story hitting the headlines. Last week we got news of SNC Lavalin offering an amnesty for any employees providing information about their huge ongoing bribery scandal. The police also announced last week their intent to extradite Dr Arthur Porter for his part in allegedly receiving $22m in return for granting a contract to SNC to build the McGill University Health Centre in Montreal.

Meanwhile, Stephen Harper's government is embroiled in a major, and very persistent, scandal involving an attempted cover-up of some dodgy expenses claims by a conservative senator. This involved Harper's (now resigned) Chief of Staff giving a "gift" of $90,000 to Senator Mike Duffy to reimburse his questionable claim and stave off any further the investigation. Oh, and who can ignore the now internationally ridiculed mayor of Toronto, who in the wake of allegations about him being caught on video smoking crack, has now had 5 members of his administration resign or get fired for, so far, unspecified reasons. Add to that the other revelations trickling out of the ongoing Charbonneau Inquiry into corruption in Quebec, and a second Laval city mayor in a matter of months accused of taking bribes and clearly all is not well in the country formerly known for peace, order and good governance.

On the face of it, Canada has a serious corruption problem. So it was refreshing to hear last week at the aptly timed Spotlight on Anti-Corruption organized by Transparency International Canada that actually, with respect to upholding its obligations for combating international bribery, Canada is actually in the midst of a major upswing. Following years of apathy and a failure to prosecute any violations of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, in the last few years we have seen the setting up of a dedicated and fully resourced police department responsible for anti-corruption, and since 2011 the first handful of persecutions. Remarkably, the Canadian police are now investigating no less than 35 cases of alleged bribery by Canadian companies overseas.

The general consensus among the anti-corruption community here is that, if not a leader, Canada is no longer a laggard. So one way of explaining away what might seem like a major corruption problem is to put it largely down to increased enforcement and in general a greater attention to corruption in the country. As delegates at TI's Spotlight event last week put it, the 'moral compass' on corruption has shifted for the better.

This view has some truth to it. But in our view, there is more to it than that. After all, the corruption that is hitting the headlines is of a very specific variety. It's not just petty corruption but is in fact involving some of our most senior business and political leaders - CEOs, hospital directors, city mayors, even the PM's office. And many of these leaders are not seemingly ready to take a public stand condemning the practice and doing all they can to root it out. SNC Lavalin is still aiming for a 'rogue employee' defense, whilst the approach of Harper's government seems to be one of secrecy and a refusal to admit any kind of wrongdoing.

This is the kind of corruption that in terms of 'tone at the top' is sending a very dangerous message to the rest of us that no amount of increased enforcement is going to compensate. Corruption, these leaders are implicitly saying, is something we are immune to.

So what is to be done? Well, rather than necessarily seeing this as an intractable problem, all the attention around corruption at the moment also offers a couple of important opportunities.

First, now is the time for our leaders to take a genuine leadership position on corruption. The public is ready to support it, there is a renewed vigor in the anti-corruption community, and Canada has a genuine opportunity to start staking a place closer to the head of the table rather than just aiming for not being quite so bad.

Second, now is also the time for a rethink about the regulatory environment around corruption. The Corruption of Foreign Public Officials Act was a good start and the amendments proposed in the 2013 Bill S-14: Fighting Foreign Corruption Act will make some incremental improvements. But as several delegates at the TI Spotlight pointed out, one reason why the US and other countries are so much more effective at prosecuting corruption is that they can also prosecute through civil law through the SEC. This makes the burden of proof lower and the likelihood of a successful prosecution higher. Institutions like the Ontario Securities Commission should be playing a much greater role in enforcement. Consider that 70% of all of the equity raised for the world's public mining companies happened on the Toronto Stock Exchange last year. This is a real concentration of financing for a major corruption risk industry which means that greater devolution of powers to prosecute corruption here could help enhance the reputation of an industry integral to Canada's economic prosperity.

As the old saying goes, never let a good crisis go to waste.

Photo by IntangibleArts. Reproduced under Creative Commons Licence