Facebook recently took a harsher tone on whistleblower Frances Haugen, suggesting the social network may be considering legal retaliation after Haugen went public with internal research she copied before quitting her job earlier this year.
US law protects whistleblowers who disclose information about potential wrongdoing to the government. But this protection does not necessarily cover the disclosure of company secrets to the media.
Facebook still has to walk a fine line. The company must assess whether suing Haugen, who could deter other employees who might otherwise speak out, is worth posing as a legal Godzilla ready to stomp on a woman who says she’s doing just the right thing. .
Haugen may face other consequences. Whistleblowers often expose themselves to professional damages – other companies may be reluctant to hire them in the future – and personal attacks for being in the public eye.
Facebook did not respond to questions sent by email.
What did Haugen do?
Haugen secretly copied a mine of internal Facebook documents before leaving the company and then asked his lawyers to file complaints with the Securities and Exchange Commission, alleging that Facebook is hiding what it knows about the negative effects of its platform.
John Tye, his attorney, said the team handed redacted documents to Congress, where Haugen testified on Tuesday, and also briefed California officials. Haugen also shared documents with the Wall Street Journal, which she began speaking with in December, leading to a series of explosive stories that began in mid-September.
What was Facebook’s response?
The company says it has been misinterpreted. “I think most of us just don’t recognize the false corporate image that is painted,” CEO Mark Zuckerberg wrote to employees on Tuesday.
Some company officials have also started to use harsher language to describe Haugen’s actions which could be interpreted as threatening.
In an interview with the Associated Press on Thursday, Facebook executive Monika Bickert repeatedly called the documents copied by Haugen “stolen,” a word she has also used in other media interviews. David Colapinto, a lawyer for Kohn, Kohn and Colapinto specializing in whistleblower cases, said the language was threatening.
In the same interview, when asked if Facebook would prosecute or retaliate against the whistleblower, Bickert simply replied, “I can’t answer that.”
A week earlier, Antigone Davis, Facebook’s head of global security, told the Senate that Facebook “would never retaliate against anyone for speaking to Congress,” which left open the possibility that the company could prosecute her for providing documents to the Journal.
Is Haugen protected?
Various laws provide protection for whistleblowers at the state and federal levels. Federal laws applicable to Haugen are the Dodd-Frank Law, a 2010 Wall Street reform law, and the Sarbanes Oxley law, a 2002 law that followed the Enron collapse and other accounting scandals.
Dodd-Frank has extended protections for whistleblowers and authorized the SEC to take action against a company that threatens a whistleblower. Protections exist for employees and former employees, experts say.
Asked about her risk because she spoke to the media, Haugen’s attorney Tye argues that because Haugen spoke to the SEC, Congress and state authorities, she is entitled protection of whistleblowers. He said any Facebook lawsuit would be “frivolous” and Facebook has not been in contact.
What about its leaks in the media?
Courts have not verified whether media leaks are protected by Dodd-Frank, but Colapinto said the U.S. Secretary of Labor determined decades ago that whistleblower environmental and safety communications nuclear power with the media were protected. He argues that Sarbanes-Oxley’s language is modeled on these earlier laws and that Haugen should be afforded the same protections for all his communications with journalists.
Facebook could allege that Haugen breached its nondisclosure agreement by sharing company documents with the press, disclosing trade secrets or simply making comments that Facebook considers libelous, said Lisa Banks of Katz, Marshall and Banks, who has been working on whistleblower cases for decades. “Like many whistleblowers, she is extraordinarily courageous and exposes herself to personal and professional risks in bringing these practices to light,” she said.
Haugen effectively used media leaks to increase pressure on Congress and government regulators. Colapinto said his disclosures served a public interest purpose that could complicate enforcement of the NDA if Facebook chooses to do so.
Could Facebook face a backlash?
Facebook probably wants its veiled threats to piss off other employees or former employees who might be tempted to speak out. “If they go after her, it won’t be because they think they necessarily have a strong legal case, but by sending a message to other potential whistleblowers that they intend to play hard,” Banks said.
But she said it would be a “disaster” for Facebook to go after Haugen. Regardless of potential legal vulnerabilities, Facebook could look like a bully if it takes legal action against it.
“The last thing Facebook needs is to anger government officials and the general public by playing the role of the big bad giant against the brave whistleblower,” said Neil Getnick, whose company, Getnick and Getnick, represents whistleblowers.