What We Owe Whistleblowers

Abstract

The legal, political, and technological developments of the past twenty years have rendered us more reliant on whistleblowers even as the developments have made whistleblowing more difficult and more hazardous. To promote informed public debate about national security and to preserve the connection between democratic consent and government policy in this sphere, we should extend legal protection, in some circumstances, to government insiders who responsibly disclose official secrets without authorization. Affording leakers a “public value” defense against prosecution would have benefits beyond those usually cited. It would, among other things, reduce the disincentive to socially beneficial leaks, lend legitimacy to Espionage Act prosecutions, more closely align our legal regime with widely shared intuitions about moral responsibility, and restore the courts to an appropriately central role in protecting the public’s access to an essential channel of information.