Law & Technology: From the Analyst to the Director and the - - PowerPoint PPT Presentation

Law & Technology: From the Analyst to the Director and the President

David Delaney, Indiana University Maurer School of Law Prepared for the NCSU Laboratory for Analytic Science Wednesday Research Meeting May 25, 2016

David Delaney, 5/25/2016

Law & Technology in Three Parts

I. The Limits of Law II. Decision Making on Legal Issues III. Anonymous Surveys and Internal Whistleblowing Communications

David Delaney, 5/25/2016

• I. The Limits of Law
• 1. Law in the rearview mirror
• 2. Law at national security policy speed
• 3. Law at net speed

David Delaney, 5/25/2016

• I. The Limits of Law
• 1. Law in the rearview mirror
• Congress conducts oversight

– 1940s and 1970s national security reform

• Courts adjudicate individual rights and

governmental powers

• Fourth Amendment: when is a government

search or seizure in cyberspace unreasonable?

David Delaney, 5/25/2016

• I. The Limits of Law
• 2. Law at national security policy speed
• White House, DOJ, ODNI

– Criminal cases, covert action, use of force, policy making, classification decisions

• Executive-legislative engagement
• Foreign Intelligence Surveillance Court
• Lawyers as civil libertarians, ethical decision

makers, and organizational conscience

• Ethics through professional codes

David Delaney, 5/25/2016

• I. The Limits of Law
• 3. Law at net speed
• Lessig: code is law
• Rule-based outcomes are concretized,

automated, cemented

• Operations, policy, law, ethics are delegated
• Classification can inhibit rearview mirror law

and national security policy law

• How do professional ethics codes operate?

David Delaney, 5/25/2016

• II. Decision Making on Legal Issues

Consider the transnational executive in a shrinking global community. National security decisions generate increasingly complex outcomes. Terrorist Interrogation Policy and the Transnational Executive

– Law, political science, history, behavioral ethics

David Delaney, 5/25/2016

• III. Anonymous Surveys and Internal

Whistleblow ing Communications

Indiana University Collaborators

Janet Near, Ph.D. Chair of Management, Kelley School of Business Adjunct Professor of Sociology Steven Myers, Ph.D. Associate Professor of Computer Science and Informatics, School of Informatics and Computing Senior Fellow, Center for Applied Cybersecurity Research

David Delaney, 5/25/2016

Research Goals

• 1. Expand the types of government agencies

studied in whistleblowing research to include those concerned with cybersecurity and cyber intelligence missions.

• 2. Implement a survey design that convinces

participants that their answers are anonymous, and test for differences in results from past studies, using ANONIZE.

• 3. From these results, develop a method to

allow anonymous internal whistleblowing, using ANONIZE.

David Delaney, 5/25/2016

ANONIZE: A Large-Scale Anonymous Survey System

IEEE S&P Symposium, March/April 2015 www.computer.org/security A new scheme enables a survey authority to independently select a group of registered users and create a survey in which only selected users can anonymously submit exactly one response. This technology has numerous applications including university course evaluations, online product reviews, and whistleblowing. Susan Hohenberger | Johns Hopkins University Steven Myers | Indiana University Rafael Pass | Cornell University abhi shelat | University of Virginia

David Delaney, 5/25/2016

What We Know about Whistleblow ing:

Findings from Social Science Research

• What is whistleblowing?
• Why does it matter?
• Where does it happen?
• Who blows the whistle?
• When do they blow the whistle?
• What is retaliation?
• Who suffers retaliation?

David Delaney, 5/25/2016

The Research, In Brief…

• Wrongdoing happens in most (all?)
• rganizations
• When (not if) wrongdoing happens, the goal

should be to encourage internal whistleblowing by:

– Creating structures for anonymous whistleblowing – Creating systems for fairly investigating allegations

• f wrongdoing

– Avoiding the temptation to engage in retaliation against the whistleblower

David Delaney, 5/25/2016

What is Whistleblow ing?

“The disclosure by organization members (former or current) of illegal, immoral, or illegitimate practices under the control of their employers, to persons or organizations that may be able to effect action” (Near & Miceli, 1985, p. 4).

David Delaney, 5/25/2016

Implications of this Definition

• Internal or external whistleblowing by

current or former employee only

• Not just recommending changes in the
• rganization—has to involve wrongdoing

(as perceived by the whistleblower)

• Purpose of whistleblowing is to get

wrongdoing stopped

• Focus on whistleblower’s behavior, not

intent or motivation

David Delaney, 5/25/2016

Why Does Whistleblow ing Matter to Organizations?

• Costs of organizational wrongdoing to the
• rganization, if reported publicly

– Financial (e.g., embezzlement) – Lawsuits (e.g., product recalls) – Increased visibility from media reports – Additional regulations from lawmakers – Reduced organizational commitment by employees

• Internal whistleblowers can help organizations

avoid or reduce these costs (Miceli et al., 2008)

David Delaney, 5/25/2016

Where does Whistleblow ing Happen?

• All kinds of organizations—but rates of wrongdoing,

whistleblowing and retaliation vary over time, industry, type of job and type of organization

• With all kinds of organization members—

whistleblowers are “made” not “born”

• With internal whistleblowing first in most cases,

then moving to external whistleblowing in rare cases, usually if the internal whistleblowing was unsuccessful or produced reprisal.

Types of Wrongdoing in Surveys

(Miceli et al., 1999; Near et al., 2004)

• Stealing of federal funds or federal property, accepting

bribes/kickbacks, use of position for personal benefit, unfair advantage to contractor and employee abuse of office

• Waste of organizational assets, by ineligible people receiving

benefits or by a badly managed program

• Mismanagement including cover-up of poor performance or

false projections of performance

• Safety problems including unsafe or non-compliant products or

working conditions

• Sexual harassment
• Illegal discrimination
• Violation of law

David Delaney, 5/25/2016

Whistleblow ing: Who is Involved?

Whistleblower Wrongdoer Organization Complaint Recipient

David Delaney, 5/25/2016

Who Blow s t he Whist le?

(Mic eli et al., 2008)

• Older employees
• More years of service to the organization
• More years of school
• Gender (male)—although results vary on this
• Higher pay level
• Supervisory status
• Knowledge of appropriate channels for reporting

wrongdoing

• Feeling of responsibility to report wrongdoing
• “Proactive Personality” type

David Delaney, 5/25/2016

When do People Blow t he Whist le?

(Miceli et al., 2008)

When they have:

• Observed serious wrongdoing
• Observed strong evidence of wrongdoing
• Supportive supervisors
• Organization supportive of

whistleblowing

David Delaney, 5/25/2016

What is Retaliation?

(Rehg et al., 2008).

“undesirable action taken against a whistleblower—and in direct response to the whistleblowing—who reported wrongdoing internally (i.e., within the

• rganization) or externally (i.e., outside the
• rganization).”

David Delaney, 5/25/2016

Who Suffers Retaliation?

(Miceli et al., 2008)

Employees who have:

• Relatively low pay
• Relatively high education
• Minority ethnic group status
• Observed serious wrongdoing
• Low support from top management
• Low support from immediate supervisor
• Used external channels

David Delaney, 5/25/2016

Backup Slides: Data

David Delaney, 5/25/2016

Rates* of Wrongdoing: Observers of Wrongdoing/ All Employees

(Brow n, 2008; Miceli et al., 1999; Rehg et al., 2008)

Nation Sample year # Ratio

Australia Government employees 2005 7663 71% US Military base employees 1998 3288 37% Federal employees 1992 13432 14% Federal employees 1983 4427 18% Federal employees 1980 8296 45% *Observed wrongdoing over past 2 years in Australian study, past 1 year in US studies.

David Delaney, 5/25/2016

Rates of w histleblow ing: w histleblow ers/ All Observers of Wrongdoing

(Brow n, 2008; Miceli et al., 1999; Rehg et al., 2008)

Nation Sample year # Ratio

Australia Government employees 2005 7663 39% US Military base employees 1998 3288 24% Federal employees 1992 13432 48% Federal employees 1983 4427 40% Federal employees 1980 8296 26%

David Delaney, 5/25/2016

Rates of Retaliation: w histleblow ers w ho Suffered Retaliation/ All w histleblow ers*

(Brow n, 2008; Miceli et al., 1999; Rehg et al., 2008)

Nation Sample year # Ratio

Australia Government employees 2005 7663 22% US Military base employees 1998 3288 37% Federal employees 1992 13432 33% Federal employees 1983 4427 21% Federal employees 1980 8296 16% *Identified whistleblowers, excluding anonymous whistleblowers

David Delaney, 5/25/2016

Types of Ret aliat ion (US Milit ar y Base)

%Threatened %Experienced Co-workers not socializing with me 11 Pressure from co-workers to stop complaint 2 5 Tighter scrutiny of daily activities by management 2 14 Withholding of information needed to perform job 1 10 Personnel/staff withdrawn 9 Verbal harassment or intimidation 5 12 Poor performance appraisal 2 15 Professional reputation was harmed 1 7 Charged with committing an unrelated offense 1 7 Denial of award 1 7 Denial of promotion 2 7 Denial of opportunity for training 1 9

David Delaney, 5/25/2016

Types of Ret aliat ion (US Milit ar y Base, c ont .)

%Threatened %Experienced Relocation of desk or work area in office 5 Imposed access restrictions 1 7 Assignment to less desirable/important duties 2 8 Reassignment to job with less desirable duties 1 7 Reassignment to a different geographical location 3 Security clearance withdrawn 1 Required to take a fitness-for-duty exam 1 2 Suspension from job Grade level demotion Fired from job

References

Brown, A. J. (Ed.). (2008). Whistleblowing in the Australian public sector: Enhancing the theory and practice of internal witness management in public sector

• rganizations. Canberra, ACT: ANU E-Press.

Miceli, M. P., Rehg, M. T., Near, J. P., & Ryan, K. (1999). Can laws protect whistleblowers? Results of a naturally occurring field experiment. Work and Occupations, 26, 129-151. Miceli, M.P., Near, J.P., & Dworkin, T.M. (2008). whistleblowing in Organizations. Mahwah, NJ: Taylor and Francis, LEA Organization and Management Series. Near, J.P., & Miceli, M.P. (1985). Organizational dissidence: The case of whistleblowing, Journal of Business Ethics, 4, 1-16. Near, J.P., Rehg, M., Miceli, M.P., & Van Scotter, J.R. (2004). Developing a model of the whistleblowing process: How does type of wrongdoing affect the process? Business Ethics Quarterly, 14, 219-242. Rehg, M. T., Miceli, M. P., Near, J. P., & Van Scotter, J. R. (2008). Antecedents and

• utcomes of retaliation against whistleblowers: Gender differences and power
• relationships. Organization Science, 19, 221-240.