Is breach of criminal law justified in whistleblowing? What if the whistleblower’s revelations lead to other criminal activity? While these questions may appear to relate to Edward Snowden, they are equally applicable to a Monocan named Hervé Falciani. His story was told in an article in the New Yorker magazine entitled, “The Bank Robber” reported by Patrick Radden Keefe. Falciani was the person who worked at the bank HSBC and stole the list of persons who banked there, including those who did so to engage in tax evasion.
Falciani was arrested in France, who after reviewing the files on his computer, declined to extradite him to Switzerland, where he was tried in absentia and convicted of aggravated industrial espionage and sentenced to five years in prison. The French see him as something different, as one French prosecutor said “I would characterize him as a bit messianic.” Indeed several countries have opened investigations into their own citizens tax evasion issues; including Germany, Great Britain, Russia, Argentina, Sweden, Belgium, Spain, India, and the United States.
What about his whistleblower status and compensation? After all Bradley Birkenfeld received a multimillion dollar whistleblower bounty from the U.S. Internal Revenue Service for his disclosures which led the U.S. government collecting unpaid taxes. However the data provided by Falciani was clearly stolen and the question now becomes should data thieves be paid for what they steal, even if that stolen data provides evidence of other criminal activity?
German Chancellor Angela Merkel created the greatest stir and “infuriated Swiss officials when she announced that the German government would happily pay a Swiss bank employee who was offering to sell information about secret accounts held by German taxpayers. She was quoted in the article for the following, “If these data are relevant, we should aim to get hold of them.”
In light of the Panama Papers release, the issue is not unmoot. More importantly for HSBC, these Panama Papers showed that the bank “had created more than twenty-three hundred shell companies that had been registered by Mossack Fonseca.” One might reasonable wonder what this might mean for U.S. prosecution of HSBC going forward?
But what of Falciani? Should he be compensated? At this point there is no consensus but one thing is certain it is a brave new world of information security.