The Promise and Perils of Tech Whistleblowing

Abstract

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete control over corporate information, shielding their activities from oversight and scrutiny by regulators and the public. Secrecy, however, begets leaks, and leaks have become the de facto source of crucial information for lawmakers, regulators, and the public. Today, whistleblowing is an important part of broader efforts to bring accountability and transparency to the tech industry.

Yet existing frameworks for protecting whistleblowers are partial and haphazard. The law often permits firms to retaliate against internal critics, leakers, and organizers. The result is an informational environment shaped by selective disclosures on the part of tech whistleblowers, and enormous discretion for tech firms that can choose whether and how to respond. Whistleblowing is therefore an incomplete, but still significant, source of information in the absence of meaningful, rigorous, and systematic transparency rules. I make the case that broader protections for whistleblowing are a necessary component of systemic regulation of the tech sector.

Keywords: whistleblowing, secrecy, speech, employment law, law and technology, AI, transparency, FTC