wistleblower busted.

February 27, 2006 8:20 AM

Diebold whistleblower busted for whistleblowin'. Stephen Heller, who leaked classified information showing how Diebold illegally used uncertified voting machines in California in 2002, is being charged with sundry computer crimes by the LA County DA's office.
posted by delmoi (53 comments total)

Where can we donate to his legal fund?
posted by Faint of Butt at 8:32 AM on February 27, 2006

I'm all for whistle blowing, and protection of whistleblowers, but that doesn't seem to be what occurred here. At least according to the article, Heller released memos (not documents) that simply contained the opinions of the lawyers working on a case that already was being litigated. In other words, the whistle had been blown, and the lawyers were just writing back and forth about it. Am I missing something?
posted by OmieWise at 8:40 AM on February 27, 2006

Classified? He's charged with stealing documents from his employer, a law firm which was representing Diebold at the time. Classified has nothing to do with it.
posted by jellicle at 8:44 AM on February 27, 2006

Why did he admit taking the docs, unless it was needed to authenticate them?
Somebody needs to make sure his jurors understand jury nullification if it goes trial.
posted by 2sheets at 8:51 AM on February 27, 2006

Hmm, maybe classified was the wrong word. I certanly didn't mean classified by the government.
posted by delmoi at 8:55 AM on February 27, 2006

Ummm, whistleblower? At least from the link, it doesn't sound too much like he was doing any blowing, but rather releasing memos of opinions held by his employers.

FTA: Certainly, someone who saw those documents could have reasonably believed that thousands of voters were going to be potentially disenfranchised in upcoming elections.

Without seeing those documents, I find it hard to believe that this is the case. Does anybody have links to the docs in question?

Now, if this was internal documents from Diebold executives, stating "Shit, our stuff is busted and is totally gonna screw people" then I could see calling this guy a whistleblower. As it stands, that term seems like a bit of an overstatement.
posted by antifuse at 8:58 AM on February 27, 2006

Whistleblowing and what this guy did are two different things.
posted by fenriq at 9:09 AM on February 27, 2006

Well, the thread was fun while it lasted. Valiant effort delmoi.
posted by Witty at 9:12 AM on February 27, 2006

Diebold had marketed and sold its systems before gaining federal qualification and had installed uncertified software on election machines in 17 counties.

Osama would be proud.

In November 2004, the company settled a civil lawsuit brought by two activists and later joined by the state attorney general after he dropped his criminal investigation of the company.

Diebold paid $2.6 million to settle the suit, which alleged that the company had sold its touch-screen voting systems to Alameda County through misrepresentations about their security and certification.

Guilty. Definitely a company one should think twice or more before trusting ; hell I don't trust electronic voting at all, it's pointless useless expensive and most importantly, it can be easily altered to make the loser win.
posted by elpapacito at 9:38 AM on February 27, 2006

As has been said, this kind of conversion is not protected under the federal Whistleblower statute. He stole privileged attorney work product, and breached his former firm's duties to the client to keep privileged information protected. He should go to jail.

This thread is clearly wrong.
posted by dios at 9:41 AM on February 27, 2006

Actually, y'all are being every bit as presumptuous as delmoi if you say that revealing these documents doesn't constitute "whistleblowing."

If the attorneys in question are offering an opinion based on information that was not known outside of their confidence with their client -- i.e., if they knew that Diebold has broken the law but weren't telling anyone -- that certainly fits what I'd call whistleblowing. We do not know if that was the case, based on this article.

nitfilter: "... memos (not documents) ...". Memos are, by definition, documents. Anyone who disagrees has a very specialized and non-standard definition of "documents."
posted by lodurr at 9:44 AM on February 27, 2006

How exactly isn't this wistleblowing?

Ummm, whistleblower? At least from the link, it doesn't sound too much like he was doing any blowing, but rather releasing memos of opinions held by his employers.

That's exactly what whistleblowing is.

In other words, the whistle had been blown, and the lawyers were just writing back and forth about it. Am I missing something?

I think so. He worked for Diebold, and Diebold lawyers were talking to each other about how Diebold could be liable if this information came out. Unless I misread it, the information had not yet come out - accusations had, but not evidence.
posted by Happy Monkey at 9:44 AM on February 27, 2006

Man, my nitfilter is hyperactive today. Dios, the post may be clearly wrong, but for the thread to be wrong, we've got to have something quite different going on. Like goat-human hybrids, or something.

Anyway, I would say this to what you've got to say: You're right, and you're wrong. I agree that he should be prosecuted; depending on the merits of the case, I can even agree that he should be found guilty; I do not agree that he should necessarily go to jail.

This post pertains to a concept I've felt strongly about for a long time: That right-behavior carries risks. We all know that right-behavior and lawful-behavior are sometimes in conflict; we also all know (though some of us will be loathe to admit it) that right-behaviors can conflict, and that we have to make a choice when that happens. This is an example of moral behavior in resistence to law. We need more of that, not less. It's perfectly appropriate that people pay a price for right-behavior that violates the law. It's distasteful, to say the least, when that price is the maximum possible.
posted by lodurr at 9:49 AM on February 27, 2006

Whistleblowing is defined by statute. States have their own, but the federal one reads thus:

Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of his employer or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole.

31 U.S.C. 3730(h).

This is not whistleblowing.

His employers were not doing anything illegal. They were discussing amongst themselves litigation and legal analysis. He stole their work product and breached their duties to keep information privileged. He clearly violated the law. The documents do not implicate Jones Day. Had Jones Day been doing something illegal, then one of their employees could "Whistleblow" on them if they behaved in a legal manner. He took documents of Jones Day there were completely legal and released them.

This is not a whistleblower case. This FPP is wrong.
posted by dios at 9:50 AM on February 27, 2006

Sorry, I thought I linked to the statute.

Here is 31 USC 3730(h).
posted by dios at 9:52 AM on February 27, 2006

"Whistleblowing" is, yes, defined by statute. It is also defined by common use.

It's damn near the height of folly to argue that the statutory definition is the only valid defintion for a term in common use. This is clearly "whistleblowing" under the common understanding of the term.
posted by lodurr at 9:53 AM on February 27, 2006

We are talking about the law here, lodurr.

Feel free to play whatever linguistic game you want. But if you are calling someone a Whistleblower under the law, and suggesting that he should be protected as such, then you are going to have to play by the legal definitions.
posted by dios at 9:55 AM on February 27, 2006

What's a "wistleblower"?
posted by clevershark at 10:04 AM on February 27, 2006

In the memos, a Jones Day attorney opined that using uncertified voting systems violated California election law and that if Diebold had employed an uncertified system, Alameda County could sue the company for breaching its $12.7-million contract.

Diebold's lawyers admit they broke the law, disenfrachising thouands and undermining our democracy at a very basic level. They settle by returning $2.6 million on a $12.7 million contract, just the cost of doing (very profitable) business.

Heller shows a few pieces of paper to his fellow citizens and faces 3 years in jail. CORPORATIONS ARE NOT PEOPLE, they should have no rights.
posted by If I Had An Anus at 10:04 AM on February 27, 2006

lodurr writes "If the attorneys in question are offering an opinion based on information that was not known outside of their confidence with their client -- i.e., if they knew that Diebold has broken the law but weren't telling anyone -- that certainly fits what I'd call whistleblowing."

No, it still isn't whistleblowing in this case because the case was already in the courts. In other words, he wasn't revealing a pattern of behavior, or calling attention to wrongful acts, he was helping one side in a lawsuit already in progress.

Don't get me wrong, from everything I've read, Diebold sucks donkey dicks, but the heroes here are the activists who brought the suit for which this guy provided documents.
posted by OmieWise at 10:06 AM on February 27, 2006

lodurr writes "'Whistleblowing' is, yes, defined by statute. It is also defined by common use.

"It's damn near the height of folly to argue that the statutory definition is the only valid defintion for a term in common use. This is clearly 'whistleblowing' under the common understanding of the term."

Although I disagree with you about what this guy did, I still don't understand this argument, which seems to argue that shistleblower statutes should disregard the legal definition of whistleblower in order to protect this guy?
posted by OmieWise at 10:08 AM on February 27, 2006

Diebold's lawyers admit they broke the law

No they didn't. For one, the lawyers didn't do anything wrong. They are discussing the actions of their client Diebold(whom Heller didn't work for and therefore can't blow the Whistle on as defined by the statute). Secondly, they were discussing potential arguments. Notice the word "if."

In the memos, a Jones Day attorney opined that using uncertified voting systems violated California election law and that if Diebold had employed an uncertified system, Alameda County could sue the company for breaching its $12.7-million contract.

It's internal lawyer discussion. They could have easily said, "If Diebold committed genocide, they would get in trouble."

This is attorney work product. Heller worked for them. His disclosure of this is not protected by any law. He broke the law. He should go to jail. (Incidentally, he also exposes Jones Day to liability for breach of confidences to their clients).
posted by dios at 10:08 AM on February 27, 2006

We are talking about the law here, lodurr.

No, you're talking about the law. I'm talking about ethical behavior. They are not inherently related.

omiewise: I still don't understand this argument, which seems to argue that shistleblower statutes should disregard the legal definition of whistleblower in order to protect this guy?

Well, I don't know whose argument that is. It's not mine. Read what I wrote to dios, up-thread.
posted by lodurr at 10:10 AM on February 27, 2006

What he did Seems to be against the Law as Dios Pointed out, I think the Main argument is "Was what he did morally just given the circumstances and thus deserving of a jury nullification, and/or is the Law just in this case at all?"

Also "what are the limits of whistleblowing in this case?" and perhaps we can discuss what Diebold knew about what the machines were doing in the first place?"

"Who did the worse crime here?" is another question...

For me it comes to, should I be sanctioned for breaking the law to expose a far worse criminal act? and if yes then how much punishment and I willing to take and the people willing to prescribe?

Dios, at this point, the argument has expanded beyond "their or your" definition of "whistleblower"
posted by Elim at 10:12 AM on February 27, 2006

Heller was under contract to Jones Day, the law firm represent Diebold.
I think that he should be prosecuted (and agree with lodurr as well as it relates to accepting the consequences of ones actions).
I believe that attorney-client priviledge should be protected, and that letting Heller off would be a blow to that priviledge.

He isn't a whistleblower. If Jones Day was doing something underhanded and he brought that to light, then I think then he'd be entitled to Whistleblower status. For example, if Jones Day were to cover up or obstruct investigations. But his employer was hired to provide legal advice to their client.

Like it or not, we have a system where the accused are allowed to make an unimpeded vigorous defense of themselves, actions like Heller's undermine that system and should be prosecuted (as should something like eavesdropping on Attorney/Client conversations).

On preview ... I can't type fast enough to keep up with threads, so apologies for redundant thoughts already expressed up thread.
posted by forforf at 10:12 AM on February 27, 2006

Look: you can only get Whistleblower protection for exposing your own employer. The employer here is Jones Day. The law does not afford him protection. If you want to make some argument about what is "right," then have at it. But don't argue the law or couch the FPP in terms of the law and how this guy should be protected by it when the law doesn't apply to this guy.
posted by dios at 10:14 AM on February 27, 2006

Fine, no problem. But as noted, we're a bit past that point by now.
posted by lodurr at 10:15 AM on February 27, 2006

Ok, sorry, I read what you wrote. I guess I disagree that what he did was even morally correct, but I understand your argument about right action and legal action and the tensions and differences between them.
posted by OmieWise at 10:17 AM on February 27, 2006

The guy worked for a law firm. Law firms routinely represent clients that may have done things that were illegal, or at the very least, morally wrong. If you think that it would be helpful or prudent for employees of law firms to disclose confidential information, particularly legal memos from the law firm itself, whenever a client has done something bad, you're simply wrong. The attorney-client privilege and work product protections (which both cover non-lawyer employees of law firms, by the way) are critical for the healthy functioning of our legal system.
posted by monju_bosatsu at 10:23 AM on February 27, 2006

... you're simply wrong.

You're simply making a catagorical statement where none is warranted -- which is to say, you're simply wrong.
posted by lodurr at 10:30 AM on February 27, 2006

Diebold's lawyers admit they broke the law

No they didn't.

Yes, dios, poor use of a pronoun on my part. Diebold's lawyers admit Diebold broke the law....
posted by If I Had An Anus at 10:41 AM on February 27, 2006

Who says a categorical statement isn't warranted? You? On what basis? There's a reason we have the attorney client privilege: to ensure fairness of legal proceedings and to preserve the right to counsel. If the privilege is so easily circumvented, i.e., by an employee simply stealing documents and revealing them to outside sources, then the integrity of the legal proceedings has been compromised.
posted by monju_bosatsu at 10:45 AM on February 27, 2006

You are also still missing the significance of the word "if." Typically that is not used an admission of something.
posted by dios at 10:45 AM on February 27, 2006

Whether it was warranted, or not, monju_bosatsu was perfectly correct to say that "You're simply wrong" if you object to this.
posted by dios at 10:47 AM on February 27, 2006

Look: you can only get Whistleblower protection for exposing your own employer.

Even if you are a contractor? Which essentially, every lawyer is. Unless they're defending themselves.

And does the "wistleblower" law cover corporate collusion?

-Say I work for company X. Company X has me contracted to provide some non-custodial service to Corporation Y. During my service with Corp Y, I stumble across some documentation connecting Corp Y with Z-Co. Actually it appears that Z-Co is a shell corporation set up by the heads of Corp Y. I'm puzzled by this, but I keep droning on.

Now here's where it gets good.

Z-Co gets outed/vilified in the press for lets say, dumping toxic waste on animal shelters. Is it not whistleblowing for me to alert the authorities of the connection between Corp Y and Z-Co? Some here are saying that it isn't.

Side note - If corporations have all the beneficial legal rights of people, shouldn't they also have the same legal consequences as well? If I conspire with another person to commit a crime, doesn't the law recognize that and charge me accordingly? Why no accountability?
posted by Sphinx at 10:51 AM on February 27, 2006

If corporations have all the beneficial legal rights of people, shouldn't they also have the same legal consequences as well? If I conspire with another person to commit a crime, doesn't the law recognize that and charge me accordingly? Why no accountability?

Corporations don't have all the beneficial legal rights of people. They can't vote, they can't adopt children, etc. Moreover, they can be charged with crimes. Anderson is probably the biggest recent example.
posted by monju_bosatsu at 10:54 AM on February 27, 2006

They can't vote

LOL.
posted by sonofsamiam at 10:55 AM on February 27, 2006

Well, I wasn't familiar with the details of the story (the article didn't even say he worked for Diebold's lawyers), and I was a little suspicious of the idea that he was without fault, as the article seemed to imply, and the article itself called him a whistleblower. I wanted to leave my opinion out of the FPP, though, and now I'm getting flamed for that.

Just out of curiosity, what kind of "activist" would have been willing to settle with Diebold? Take the payoff and quit bitching? Lame.
posted by delmoi at 10:56 AM on February 27, 2006

Z-Co gets outed/vilified in the press for lets say, dumping toxic waste on animal shelters. Is it not whistleblowing for me to alert the authorities of the connection between Corp Y and Z-Co? Some here are saying that it isn't.

Sphinx: Well, not if Corp Y is Z-Co's lawfirm.
posted by delmoi at 10:57 AM on February 27, 2006

You are also still missing the significance of the word "if."

And the settlement doesn't prove Diebold is a tool of tpure evil. Still, if you ask me, Diebold is an entity that doesn't deserve any privileges. Well maybe its Board of Directors deserves protection from being repeatedly ass-raped while the warden looks the other way. But other than that....nah.
posted by If I Had An Anus at 10:58 AM on February 27, 2006

Yeah, I was wondering about the settlement, too. The only thing I can think of is that Diebold convinced them that the legal costs would ultimately outweigh their resources, and generously gave them a chance to fight another day. So to speak.

But whether our courts have got it together enough to be able to do anything about it, it's plain as day that Diebold has been criminally negligent at nearly every stage of their contracting. "Negligent" is the nice interpretation, the one without malice.

Those machines are just not secure, both the touchscreen ones and the central tabulating machines.
posted by sonofsamiam at 11:03 AM on February 27, 2006

On the other hand, one might say that the integrity of the voting process is more important then the integrity of attorney-client privilege. The fact that the lawyer and the client knew something doesn't mean that it would ever come out in the clear.

Lets look at a hypothetical situation based on an episode of Law and Order I once saw. The defendant had kidnapped a little girl and had her in an undisclosed location (his mom's house, it turns out). The defendant was trying to get a deal worked out with the prosecutors before he would tell them where the kid was. Now, suppose the defendant's public defender was told where the kid was, and decided to just tell the cops. That, clearly would have been a violation of attorney client privilege, but on the other hand it could have saved the girls life. I think most people would consider a little girls life more important then an abstract legal concern.

In the episode, the police actually arrested the lawyer and held him in jail, and he refused to say anything. All very unrealistic, as any sort of deal worked out would have been legally unconscionable, of course.
posted by delmoi at 11:03 AM on February 27, 2006

Link to a page hosting the leaked docs in PDF
posted by elpapacito at 11:06 AM on February 27, 2006

delmoi: see, those kinds of problems are resolved by torture. It's OK for employees of the government and their hired corporate buddies to break the law for the greater good, you and I are just not equipped to make those tough decisions.

On the other hand, one might say that the integrity of the voting process is more important then the integrity of attorney-client privilege.

Who can say what they'd do in a similar situation? If a national election is really being rigged, that's a coup d'etat. That's as important news as it gets.
posted by sonofsamiam at 11:13 AM on February 27, 2006

Delmoi, I am going to have to agree with Dios here. I don't see anything in the memos except what will happen if Diebold did break the law. I don't see any admission that they did break the law, just speculation. In this case, I don't think this guy deserves any special protection from prosecution. He broke the law, and he thought he was doing something for good, but he was stupid, and his leaked memos prove nothing.
posted by [expletive deleted] at 11:23 AM on February 27, 2006

Hmm...tough to hash out all the details. As a general principle - between what’s right and what’s legal, I’ll do what’s right and take the legal hit. In this case it looks like that’s what this guy did, or tried to do anyway.
No points for doing the right thing if it’s done poorly enough that it sabotages any good that might come of it tho’.
posted by Smedleyman at 11:23 AM on February 27, 2006

Sphinx writes "Even if you are a contractor? Which essentially, every lawyer is."

I don't think so. A lawyer is an attorney. The attorney/client relationship is unique and is treated differently under law than a contractor/contractee relationship.
posted by mr_roboto at 12:10 PM on February 27, 2006

Is The GOP "Shock-The-Vote Gang" Planning to Heist California?
posted by homunculus at 12:30 PM on February 27, 2006

I saw this movie once called “Whistleblowin’” let me just say, it had nothing to do with leaking classified information.
posted by Smedleyman at 2:34 PM on February 27, 2006

Whistle blowing isn't the real issue illuminated by this story. There has been evidence that Diebold has helped Bush, et al win elections. Any light shed on this evil darkness in our voting process, is a good thing for our former free republic.

One might ask, for example, why Diebold machines always make mistakes in favor of Republicans? Then we see all those one-sided voting machine irregularities, after the company’s CEO promised publicly to help deliver Republican election victories.

Machines in Florida, Pennsylvania, and Ohio have cranked out some rather bogus results. Some recording more votes than people registered in an area.

Randy Rhodes on Air America talks about a machine in Florida 2000, counting 8,000 more votes for Bush than were actually cast. That one machine changed history, forever, but not for the better.
posted by BillyElmore at 8:42 PM on February 27, 2006

I seem to recall a story about this guy that made an effort against the bad guys. He was criminally charged and convicted to death. In those days, it was death by hanging.

As the story goes, he made a statement before he was hanged. I guess he said it from the gallows. Some of you may recall the quote, it was once considered important to Americans:

"I regret that I have but one life to give for my country."

Perhaps it is just a myth. Maybe it was true and it's not taught anymore. Maybe no one feels that way anymore. But maybe this [non]whistleblower was old enough to remember the quote, and still thought it was important.
posted by Goofyy at 10:41 PM on February 27, 2006

Are you dying to know how to hack into a Diebold machine? Unless your local registrar has bothered to change it, here's the key: F2654hD4. And the 8-byte password used for Diebold’s voter, administrator, and ender cards is ED 0A ED 0A ED 0A ED 0A. Aren't you glad this stuff is so easily found on the internet?

posted by If I Had An Anus at 7:32 AM on February 28, 2006

Jesus.
posted by OmieWise at 7:38 AM on February 28, 2006