EXPLAINER: Could Facebook sue whistleblower Frances Haugen?

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Facebook has precocious taken a harsher code toward whistleblower Frances Haugen, suggesting that the societal web could beryllium considering ineligible retaliation aft Haugen went nationalist with interior probe that she copied earlier leaving her occupation earlier this year.

U.S. instrumentality protects whistleblowers who disclose accusation astir imaginable misconduct to the government. But that extortion doesn't needfully screen taking firm secrets to the media.

Facebook inactive has to locomotion a good line. The institution has to measurement whether suing Haugen, which could dissuade different employees who mightiness different talk out, is worthy casting itself arsenic a ineligible Godzilla consenting to stomp connected a pistillate who says she's conscionable doing the close thing.

Haugen whitethorn look different consequences. Whistleblowers often enactment themselves astatine hazard of nonrecreational harm — different firms whitethorn beryllium reluctant to prosecute them successful the aboriginal — and idiosyncratic attacks from being successful the nationalist eye.

Facebook did not respond to emailed questions.

WHAT DID HAUGEN DO?

Haugen secretly copied a trove of interior Facebook documents earlier leaving the institution and subsequently had her lawyers record complaints with the Securities and Exchange Commission alleging that Facebook hides what it knows astir the antagonistic effects of its platform.

John Tye, her lawyer, said the squad gave redacted documents to Congress, wherever Haugen testified connected Tuesday, and besides informed officials successful California. Haugen besides shared documents with the Wall Street Journal, which she started talking to successful December, starring to a series of explosive stories that began successful mid-September.

WHAT WAS FACEBOOK'S RESPONSE?

The institution says it has been mischaracterized. “I deliberation astir of america conscionable don’t admit the mendacious representation of the institution that is being painted,” CEO Mark Zuckerberg wrote to employees connected Tuesday.

Some institution officials person besides begun utilizing harsher connection to picture Haugen's actions that could beryllium interpreted arsenic threatening.

In an Associated Press interrogation Thursday, Facebook enforcement Monika Bickert repeatedly referred to the documents Haugen copied arsenic “stolen,” a connection she has besides utilized successful different media interviews. David Colapinto, a lawyer for Kohn, Kohn and Colapinto who specializes successful whistleblower cases, said that connection was threatening.

In the aforesaid interview, asked if Facebook would writer oregon retaliate against the whistleblower, Bickert said only, “I can’t reply that.”

A week earlier, Antigone Davis, Facebook’s caput of planetary safety, testified successful the Senate that Facebook “would ne'er retaliate against idiosyncratic for speaking to Congress,” which near unfastened the anticipation that the institution mightiness spell aft her for giving documents to the Journal.

IS HAUGEN PROTECTED?

Various laws connection whistleblower extortion astatine some the authorities and national levels. The national laws applicable to Haugen are the Dodd-Frank Act, a 2010 Wall Street betterment law, and the Sarbanes Oxley Act, a 2002 instrumentality that followed the illness of Enron and different accounting scandals.

Dodd-Frank expanded protections for whistleblowers and empowered the SEC to instrumentality enactment against a institution that threatens a whistleblower. Protections beryllium for some employees and erstwhile employees, experts say.

Asked astir her hazard due to the fact that she went to the media, Haugen's lawyer, Tye, maintains that due to the fact that Haugen went to the SEC, Congress and authorities authorities, she’s entitled to whistleblower protections. He said immoderate suit from Facebook would beryllium “frivolous" and that Facebook has not been successful touch.

WHAT ABOUT HER LEAKS TO THE MEDIA?

Courts haven't tested whether leaking to the media is protected nether Dodd-Frank, but Colapinto said the U.S. Secretary of Labor determined decades agone that biology and nuclear-safety whistleblowers' communications with the media were protected. He argues that the connection of Sarbanes-Oxley is modeled connected those earlier statutes, and Haugen should person the aforesaid protections for immoderate of her communications with reporters.

Facebook could allege that Haugen broke her nondisclosure statement by sharing institution documents with the press, leaking commercialized secrets oregon conscionable by making comments Facebook considers defamatory, said Lisa Banks of Katz, Marshall and Banks, who has worked connected whistleblower cases for decades. "Like galore whistleblowers, she’s extraordinarily brave and puts herself astatine idiosyncratic and nonrecreational hazard successful shining a airy connected these practices,” she said.

Haugen efficaciously utilized leaks to the media to crook up the unit connected Congress and authorities regulators. Colapinto said her disclosures had a public-interest intent that could complicate enforcing the NDA if Facebook chose to bash so.

COULD FACEBOOK FACE BLOWBACK?

Facebook astir apt wants its veiled threats to unnerve different employees oregon erstwhile employees who mightiness beryllium tempted to talk out. “If they spell aft her, it won't beryllium due to the fact that they needfully deliberation they person a beardown lawsuit legally, but sending a connection to different would-be whistleblowers that they mean to play hardball,” Banks said.

But she said it would beryllium a “disaster” for Facebook to spell aft Haugen. Regardless of imaginable ineligible vulnerabilities, Facebook mightiness look similar a bully if it pursued a ineligible lawsuit against her.

“The past happening Facebook needs is to rouse the ire of governmental authorities and the nationalist astatine ample by playing the relation of the large atrocious elephantine institution against the courageous idiosyncratic whistleblower,” said Neil Getnick, whose firm, Getnick and Getnick, represents whistleblowers.

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