for, | October 27, 2021

How Leakers Get Dealt With in Silicon Valley

And why Frances Haugen is different.

Read at

Since Friday, more than a dozen outlets have published about 100 articles and counting based on tens of thousands of internal documents leaked by former Facebook product manager Frances Haugen. Among the new findings are that Facebook granted impunity to the worst purveyors of misinformation and hate speech in India, did not have a clear plan for addressing content that helped fuel the Capitol riot, and has struggled to keep human traffickers off of the platform. Haugen initially gave interviews and provided documents to the Wall Street Journal, which ran a blockbuster series in September known as “The Facebook Files,” revealing internal research that Instagram makes body image issues worse in teen girls, and that Facebook’s news feed algorithm promoted angry and divisive content even after the company said it had tweaked it to turn down the temperature. In early October, Haugen decided to share the documents with a wider array of news outlets, which led to the deluge of stories about Facebook over the past few days.

Beyond some attempts to tarnish Haugen on social media and in the press, Facebook doesn’t appear to have done much so far to retaliate against her personally—one more thing that makes Haugen one of the more exceptional dissidents to come out a tech industry that’s been known to come down hard on whistleblowers and leakers. Indeed, Haugen was uniquely positioned to reveal what she did without leaving herself exposed to the tactics that big tech companies often pursue to squash employees who want to speak out.

Haugen’s cache of documents very likely amount to the most consequential leak in Facebook’s history; New York Times media columnist Ben Smith recently referred to her as “one of the greatest sources of the century.” Part of her effectiveness has to do with the methodical rollout of her leaks: first speaking to the Journal, then giving an interview to 60 Minutes, then testifying before Congress, and finally releasing the documents to more outlets. This carefully planned strategy has helped her pretty much bulldoze over Facebook’s objections and counternarratives; it certainly helps that she had top Democratic PR and tech operatives and the prominent Whistleblower Aid nonprofit advising her on the rollout. Haugen also has the luxury of being independently wealthy thanks to her investments in cryptocurrency—Smith reports that she and her “crypto friends” are currently living in Puerto Rico, which has become a cryptocurrency tax haven—and does not have to disseminate these leaks while also working as a Facebook employee. Facebook has tried to discredit Haugen in the public sphere by claiming that she did not work on child safety or Instagram research, and that she was employed by the company for less than two years, but those attacks have fallen flat. Haugen’s lawyers further claim that she is entitled to whistleblower protections, since she reported Facebook to the Securities and Exchange Commission for misleading investors, which could provide her with some level of immunity if the company tries to sue.

Other Silicon Valley leakers have not been so lucky and often face more serious consequences for speaking out. Facebook itself has reportedly resorted to some fairly extreme tactics to crack down on leakers, including monitoring internet use and phone calls, randomly searching bags and vehicles, and leaving decoy USB drives out in the open as bait to see whether employees would turn them in. The company in the past has even used a “rat-catching” team that acts as a sort of secret police to track down employees who talk to the press. Facebook not only fires employees who are caught, but also uses legal threats and restricted stock to discourage those who might speak out.

Facebook isn’t the only Big Tech company that zealously persecutes leakers; Apple is currently embroiled in controversy over the way it handles employee whistleblowing. In mid-October, Apple fired program manager Janneke Parrish, who is a leader of the #AppleToo employee movement exposing instances of harassment and inequality at the company. Apple suspected that she’d leaked a recording of a September town hall meeting, in which CEO Tim Cook discussed employee vaccination policies, the company’s recent victory in a lawsuit with Epic Games, and workplace conditions. After the Verge reported the leaks, Apple demanded that Parrish turn over her company phone and computer for an investigation. Parrish told the New York Times that she wasn’t the leaker, though she did delete some data on her devices like the Robinhood stock trading app and sensitive political campaign information before handing them over to her employer. Apple reportedly terminated her for deleting this data, labeling it as an act of “noncompliance.”

Recently, Apple has been intensifying its crackdown on product leaks. In July, the site MacRumors reported that a number of reliable Apple leakers had received warning letters from lawyers commissioned by the company. The #AppleToo movement, however, argues that Apple has been using the pretense of combating product leaks to chill whistleblowing about workplace issues.

Apple’s alleged tendency to conflate IP leaks with whistleblowing is exemplified in an internal email to employees from late September, in which Cook wrote that “people who leak confidential information do not belong here.” He noted that most of the details from the recent launch of iOS 15, iPadOS 15, and watchOS 8 had already been leaked by the time the announcement was made. The email, which was itself leaked to the press, went on to say, “we do not tolerate disclosures of confidential information, whether it’s product IP or the details of a confidential meeting.” The confidential meeting he was referring to was the same one that Parrish was fired over, which didn’t really have to do with any IP secrets, but rather employee vaccinations and winning against Epic. Cook wrote of these meetings, though, that “these opportunities to connect as a team are really important. But they only work if we can trust that the content will stay within Apple.”

A current Apple employee and member of the #AppleToo movement, who asked not to be named or directly quoted for fear of retribution, told me that the corporate workforce almost universally seems to agree that IP and product leaks are incredibly frustrating, as it spoils the surprise of launching major projects that they’ve put so much effort into. However, the employee also noted that Apple tends to label pretty much everything as “confidential information,” which makes it hard to speak out about issues like harassment and discrimination. He noted that employees were surprised to see company leadership equate coronavirus policies to upcoming product details, which speaks to how overly broad Apple’s definition of “confidential” is. Apple did not respond to an inquiry about how it treats product leaks versus whistleblowing.

Allegations that Apple treats all leaks in the same way are now the subject of a case before the National Labor Relations Board, stemming from a complaint filed by another former employee named Ashley Gjøvik, who was fired for leaking in early September. Gjøvik maintains that Cook’s email limiting discussion about company meetings could go against NLRB protections that employees have to talk about workplace concerns. Her complaint also alleges that several stipulations in the Apple employee handbook, such as restrictions on speaking to reporters, may also violate labor laws. But that’s hardly a slam dunk. “The NLRA [National Labor Relations Act] has notoriously toothless protection for whistleblowers. The retaliation inquiry will look at the specific content of what was leaked,” said University of California–Hastings law professor Veena Dubal. “But under Trump-era NLRB precedent, even the kind of company policy that Gjøvik leaked may not be considered protected. The question is, are her rights outweighed by legitimate business interests?”

Google was the subject of a similar controversy in 2016, when a product manager sued the company and submitted a complaint to the NLRB, alleging that it is overly broad in its definition of classified content. According to the suit, pretty much everything at Google is considered classified, which prevents employees from going to regulators to report wrongdoing and may also violate labor laws by restricting discussions of workplace conditions. Google responded that those confidentiality requirements were only meant to protect trade secrets, though the plaintiff seemed to be suggesting that the company was cynically flattening the distinctions between different kinds of leaks. Another employee named Kevin Cernekee also filed a complaint to the NLRB after he was allegedly fired in 2018 for promoting conservative views. Google and the NLRB eventually came to an informal settlement in which the company made it clear to employees that they could discuss wages and workplace issues.

Leaks about products have always been a phenomenon in Silicon Valley, though one of the most notable examples in recent memory—Gizmodo’s 2010 report on an upcoming iPhone model—happened because someone accidentally left it in a bar in Redwood City, California. Principled leaks about company practices and working conditions have been rarer, at least until around 2017 or 2018, when the charge that major tech companies are harming society and democracy through their products and policies became more prominent in public discourse. Since then, there’s been a flood of insiders who’ve divulged information to the press, with notable examples including leaks about Google’s work on a censored search engine in China, Uber’s system for evading regulators, and Amazon’s anti-union messaging directed at Whole Foods employees. Whistleblowing on principle is still a risky prospect—former Tesla employee Martin Tripp was ordered to pay $400,000 to the company after giving information to the press about the amount of raw material it was wasting.

There’s been some discussion in the press recently about Facebook whistleblower Sophie Zhang, who revealed inside information last year indicating that the company was ignoring international election interference occurring on its platforms but received far less public attention than Haugen. In a recent interview with Protocol, Zhang commented on this dynamic, noting, “It’s probably a statement on both the fact that she’s [Haugen] not an extreme introvert, and the fact that she probably has a great PR team supporting her. I am certainly not a PR expert, and I’ve been doing everything myself.” (Zhang also alleges that Facebook shut down the personal website where she had posted a memo criticizing the company.)

As of now, it’s unclear whether Facebook will ultimately try to escalate its counteroffensive against Haugen from a PR campaign to a legal suit. According to the National Law Review, Facebook could try to argue that Haugen broke her nondisclosure agreement by releasing trade secrets, and might even try to seize items from her to prevent further leaks. However, the company would have to prove that her leaks actually do contain intellectual property and not just reports of wrongdoing. It would also be a risky PR move, as Facebook would appear to be trying to silence a whistleblower. That Facebook is confronted with such a dilemma in the first place speaks to how powerful the publicity campaign behind Haugen’s whistleblowing has been. Her success thus far may also speak to the troubling reality that it likely takes meticulous planning and access to vast resources to enable employees to effectively speak out against Big Tech companies.