Facebook Whistleblower Isn't Protected From Possible Company Retaliation

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 Facebook whistleblower, also declined to comment. 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, 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 priviledged 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.

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Article Link: https://www.npr.org/2021/09/30/1042012393/facebook-whistleblower-retaliation

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