By: Lauren Silk, 2L
In light of the recent complaint against President Trump alleging solicitation of foreign interference in U.S. elections, whistleblower protections have reemerged as a hot-button topic. Whistleblowing, however, has a long history in our nation’s consciousness, stemming back to 1778 with the passage by Americans of the world’s first whistleblower protection law—finding a “[duty] of all persons. . . to [reveal] any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states . . . .”
Since then, revelations of government misconduct have continued under the protection of several acts, including the Whistleblower Protection Enhancement Act, Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), and the Whistleblower Protection Act of 1989. Collectively, the laws grant protections to employees in the private and public sector, including intelligence officers, to encourage disclosure of waste, fraud, or abuse, or matters of “urgent concern.” Congress even passed a resolution in 2014 recognizing July 30 as National Whistleblower Appreciation Day. Though tensions run high amid dual concerns over national security and prevention of potential espionage, the U.S. has continued following established precedent in favoring the disclosure of misconduct.
While the U.S. has a long history of whistleblower protections, many countries in Latin America have only recently enacted protections in an effort to implement anti-corruption regimes. In effect, these policies have been the first steps toward making whistleblowing much easier than in previous years.
Under Brazil’s Clean Company Act of 2014, individuals are incentivized to report crimes. Investigators can grant lesser penalties to criminals who cooperate in the investigation. Through this U.S.-inspired law, Brazil was able to prosecute executives and public officials following the Carwash investigation.
Argentina has similarly granted whistleblower protections through Section 41 of the Argentine Criminal Code. Benefits have since been extended to those revealing crimes of corruption, fraud, and financial offenses, including reduced penalties for providing reliable and credible information to prevent such offenses.
However, adaptation of U.S. policies to different political schemes has led to some difficulties. In a 2016 survey of nineteen Latin American countries, only seventy-seven percent of respondents gave credence to the newly implemented anti-corruption regimes, finding crime reporting to be a moot venture. Thor Halvorssen, a Venezuela native and advocate with the Human Rights Foundation, said that “in countries that have the rule of law, those who say no to corruption have a chance [but] [i]n the southern cone, whistle-blowers get shamed and persecuted.”
Between haphazard implementation and administrative difficulties in coordinating on transnational crimes, Latin American countries have struggled to translate U.S. whistleblower protections given the different institutional structures of each country. Current concerns stem from a presumption of criminality since benefits center on reduced penalties. Future steps toward reform might include protecting against retaliation, encouraging disclosures through monetary awards or immunity from prosecution, and providing intergovernmental collaboration for transnational corruption.