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EXPLORING THE BLURRED LINE BETWEEN WHISTLEBLOWERS AND INFORMANTS


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Whistleblowers vs. Informants: Understanding the Difference


Government agencies get information from different human sources, and there is a variety of terminology used to classify these sources. Two terms for people who report corruption and illegality that are sometimes confused are "whistleblowers" and "informants," which usually have legally distinct roles and responsibilities.


In the United States, whistleblowers and informants can make legally protected disclosures and, under certain circumstances, may receive financial support or rewards. There are increasingly more similarities that are causing the line between them to blur. The chart below outlines how they compare and contrast.

Whistleblowers

Informants

Audience

​Internal reporting is protected. Each Act designates an external Agency to whom disclosures can be made.[i] Disclosures are protected if made in court, to Congress, Inspectors General, law enforcement agencies, or other designated agencies. Public disclosures are protected, unless the information is classified, or its release is specifically prohibited by statute.[ii]

Informants are protected for information they provide to designated external federal law enforcement agencies, to the police, or to a prosecutor.

Motives

Motives are irrelevant. Whistleblowers may be motivated by the public interest, revenge, financial incentives, justice, etc. The only test to qualify for legal protection is that they had a “reasonable belief” that the information they reported evidences wrongdoing. Even if the whistleblower is mistaken in what they are disclosing, they are still protected if they had a reasonable belief which can be proven by showing peers with equivalent knowledge could agree with the whistleblower’s concerns.[iii]


Motives vary. Apart from cash-related incentives, informants may be motivated to disclose information for vengeance or a desire for justice, special immigration treatment, in exchange for leniency if the informant participated in a criminal act, under the pressure of police or prosecutors, or in response to promises of better conditions of incarceration such as transportation to a nicer prison.

Financial Incentives

A very small percentage of whistleblowers receive financial rewards, usually between 10-30% of what the government recovers in a successful enforcement action.

Sometimes informants get paid as part of federal informant rewards programs or negotiated as part of an agreement with the informant.

Recruitment

No. Whistleblowers are never recruited by the law enforcement agency to report information. However, several federal whistleblower laws also protect witnesses cooperating with federal investigations and testifying in court.

Sometimes. Informants may be recruited by law enforcement based on their insider knowledge. They may even participate in certain criminal activities authorized by their handler.

Length of relationship

Whistleblowers can provide a one-off or an ongoing supply of information to law enforcement agencies and the relationship usually ends once the matter is closed unless there are new violations to report or there is new evidence.

Informants can also provide a one-off or an ongoing supply of information to law enforcement. Informant-law enforcement relationships can be longer-term than whistleblowers.

Protection


Most modern U.S. whistleblower laws have confidentiality protection and protection from retaliation in an employment context. Some allow anonymity.[iv] Anonymity can be removed to disclose one’s identity in court based on a balancing test that weighs the societal interest in the openness of the judicial system against the privacy interest of the plaintiff in remaining anonymous.

Physical protection is usually unavailable from federal agencies and handled by local law enforcement. Federal whistleblower laws do not protect whistleblowers from civil or criminal liability (Strategic Lawsuits Against Public Participation).[v]


Confidentiality, anonymity, and protection from retaliation are available. An informant’s identity can be disclosed later in court based on a balancing test that weighs the public interest in protecting the flow of information against the individuals' rights to prepare their defense.

Protection from physical threats is available, including witness protection programs, and handled by the respective law enforcement agency. However, the level of protection and enforceability is rather weak.[vi] In exchange for providing useful information, informants may receive protection from civil or criminal liability for illegal acts, including acts committed to obtain the reported information. Prosecution is still possible where the informant’s crimes exceed the scope of what they are authorized to engage in.

Financial Support and Rewards for Whistleblowers in the United States: Recognizing the significance of whistleblowers in exposing corruption and safeguarding public interests, the United States has established various legal mechanisms to protect whistleblowers and incentivize reporting. Here are some avenues available for whistleblowers to receive financial support or rewards:

  • The False Claims Act (FCA): Under the FCA, individuals who report fraud against the federal government, such as Medicare or defense contractor fraud, may be eligible for financial rewards. Whistleblowers can receive a percentage of the recovered funds, ranging from 15% to 30%.

  • The Dodd-Frank Wall Street Reform and Consumer Protection Act: This legislation established the Securities and Exchange Commission's (SEC) Whistleblower Program. Whistleblowers who report violations of securities laws can receive monetary rewards ranging from 10% to 30% of the monetary sanctions collected by the SEC, provided the penalties exceed $1 million.

  • Other Programs: Various agencies, such as the Internal Revenue Service and the Commodity Futures Trading Commission, also offer whistleblower programs with financial incentives for reporting tax evasion and violations of commodities laws respectively.

Financial Support and Rewards for Informants in the United States: Federal law enforcement agencies have various informant rewards programs. Some of these programs loosely resemble whistleblower rewards laws.

  • The U.S. Department of State Rewards for Justice program: This rewards program allows the U.S. Secretary of State to offer and pay rewards of up to $25 million for information about terrorism, international narcotics trafficking, serious violations of international humanitarian law, transnational organized crime (including wildlife and human trafficking), foreign interference in U.S. elections, and malicious cyber activity. While rewards are at the discretion of the Secretary of State, the Attorney General must also concur with the decision to pay a reward in any case where federal jurisdiction exists. The recommendation on the amount of the reward payment is based on several factors, including:

a. the credibility, specificity, and value of the information provided,

b. the seriousness of the danger to U.S. persons or property,

c. the risk faced by the informants and their families,

d. the degree of the informant’s cooperation with relevant authorities, and

e. the degree of involvement by the informant in the crime(s) (this factor only applies to the Narcotics Rewards Program).

  • The Kleptocracy Asset Recovery Rewards Program: Implemented by the U.S. Department of Treasury, this program pays awards of up to $5 million to individuals who provide information leading to the restraint or seizure, forfeiture, or repatriation of stolen assets in an account at a U.S. financial institution (including a U.S. branch of a foreign financial institution) that comes within the U.S. or within the possession or control of any U.S. person. The reward amount is based on various factors, including:

a. whether the information was previously known to investigating agencies,

b. the risk assumed by the informant,

c. and the significance of the information in leading to the restraint or seizure, forfeiture, or repatriation of the assets identified.


Potential reward recipients involved in the underlying misconduct are subject to mandatory reduction of any reward and may be subject to a denial of an award at the Treasury Secretary’s discretion. Potential reward recipients who are convicted of criminal conduct arising from their role in the underlying corruption will be denied a reward.


At the international level, the World Anti-Doping Agency (WADA) has directly blurred the line between informants (also referred to as confidential sources) and whistleblowers. In 2021, the Agency rebranded their whistleblower policy as a “Confidential Source Policy.” WADA defines a confidential source as an informant, or a whistleblower, but distinguishes them by “first-level” informants who can range from an anonymous person who provides a one-time disclosure to an identified person who has engaged in numerous exchanges with WADA’s Confidential Information Unit (CIU), and “second-level” whistleblowers. The policy states that an informant becomes a whistleblower once they enter into a whistleblower agreement with WADA. Through this agreement, whistleblowers formally acknowledge their rights and responsibilities and can be granted additional protections. Whistleblowers can range from a person who has finite access to confidential information to a person who provides ongoing confidential information over an extended period (months/years).


Whistleblowers and informants play important and increasingly less distinct roles in exposing misconduct and illegal activities, while their motives, including financial, are becoming less relevant to legal and public perceptions of their actions. In the United States, whistleblowers and informants are protected by various laws and may, in narrow and limited circumstances, receive financial support or rewards for their courageous actions. These incentives encourage individuals to come forward and help build more transparent and accountable power structures.


 

[i] The Supreme Court held in Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767 (2018) that protected whistleblowing is limited to disclosures to the Securities and Exchange Commission (SEC). Congress is working on updating the Dodd-Frank Act to cover internal disclosures.

[ii] U.S.C. §2302(b)(8)

[iii] Under the WPA, no reasonable belief is required for communications to the Inspector General or Office of Special Counsel – it’s all protected speech. If disclosures are made through other audiences, including the media, the complainant needs to have a reasonable belief. See Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)

[iv] Under the False Claims Act, when submitting a qui tam lawsuit on behalf of the government, whistleblowers can confidentially submit the complaint, which is kept “under seal,” meaning in secret out of the public eye but known to a few within the government agency during the government investigation stage. While the court may unseal it later and expose the identity of the whistleblower, a whistleblower lawyer can move to keep it permanently under the seal.

[v] There is one exception to this. Section 7 of the Defending Trade Secrets Act of 2016 provides State and Federal-level immunity from civil and criminal liability for any individual who discloses a trade secret to a government official or attorney in confidence to report or investigate a violation of law, or in a legal complaint or filing under seal.

[vi] Farber, Bernard J. Public Protection: Informants, AELA Mo. L. J. 101 Civil Liability Law Section – May 2009, https://www.aele.org/law/2009all05/2009-05MLJ101.pdf.


Suggested citation


Bluebook: Samantha Feinstein, Exploring the Blurred Line Between Whistleblowers and Informants, CORPORATE CRIME OBSERVATORY, (August 1, 2023), www.corporatecrime.co.uk/post/whistleblowers-vs-informants


Harvard: Feinstein, S. (2023) ‘Exploring the Blurred Line Between Whistleblowers and Informants’. Corporate Crime Observatory. Available at: www.corporatecrime.co.uk/post/whistleblowers-vs-informants

OSCOLA: Samantha Feinstein, ‘Exploring the Blurred Line Between Whistleblowers and Informants’, (Corporate Crime Observatory, August 2023),<www.corporatecrime.co.uk/post/whistleblowers-vs-informants>


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