Whistleblowers have reported on securities violations, alerted the IRS to tax fraud, uncovered foreign corruption, provided information about government contract fraud, and blown the lid off suspect techniques at government crime labs.
As insiders, whistleblowers are best-positioned to report on illegal activity. Strong whistleblower laws have helped curb white collar fraud for decades. Now, it is time to fully activate the power of whistleblowers to diminish and ultimately demolish wildlife trafficking syndicates.
In the first installment of our series on H.R. 5697 (the Wildlife Conservation and Anti-Trafficking Act of 2018), we chronicled the devastation that wildlife trafficking has wrought upon species around the globe. Last week, we explained why the Government Accountability Office’s report on the Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) shows the need for an enhanced wildlife whistleblower law.
This post will explain the new enforcement mechanisms that H.R. 5697 will implement, including augmented wildlife whistleblower provisions. Law enforcement officials and prosecutors need stronger legal tools to eradicate wildlife trafficking. Fortunately, H.R. 5697 comes stocked with an arsenal of effective enforcement provisions.
Bolstering Anti-Trafficking Enforcement
H.R. 5697 expands the scope of anti-trafficking enforcement in a number of important ways. The law authorizes law enforcement officials and FWS personnel to be stationed abroad in the areas hardest hit by wildlife trafficking. This is a commonsense reform: FWS needs to have more people where wildlife trafficking originates to tackle the trade. The law further empowers federal law enforcement officials to combat the global wildlife trafficking syndicates, ensuring agents on-the-ground that wildlife trafficking is a key priority. H.R. 5697 will also lead to better policing of our oceans: Section 11 of the bill makes illegal, unreported, and unregulated fishing (IUU fishing) a predicate offense under 18 U.S.C. § 1956(c)(7), a federal money laundering statute.
The whistleblower provisions have the potential to become a game-changer in wildlife trafficking enforcement. Whistleblowing has proven the number one source of detection of illegal behavior in a plethora of contexts. A 2008 study by the Association of Certified Fraud Examiners found that whistleblower tips were responsible for uncovering 54% of fraud in public companies; external auditors unearthed only 4.1% of such scandals. The False Claims Act (FCA) allows the federal government to bring suits against government contractors who have acted fraudulently. In 2017, 92% of the money recovered under the FCA came from whistleblower tips. Chad Readler, the Acting Assistant Attorney General of the Justice Department’s Civil Division, explained “because those who defraud the government often hide their misconduct from public view, whistleblowers are often essential to uncovering the truth.”
The reason for these stunning figures is simple: as insiders, whistleblowers are in a unique position to know about misdeeds. They have special insight into the bad actors, and in-depth knowledge about the methods these lawbreakers are using to commit fraud, embezzle funds, and avoid detection.
The same logic applies to wildlife trafficking. It is hard to gather information about secret syndicates that operate covertly on in countries that have shaky rule-of-law, less investigative know-how, and fewer prosecutorial resources. Individuals on the ground will have deeper knowledge of the trade: where and when animals are poached, how park rangers and customs officials can be paid, and what social media sites are used to grease the wheels of illegal commerce.
H.R. 5697 enacts several critical whistleblower provisions. The bill provides a standardized process for FWS to review whistleblower cases, calls for the establishment of whistleblower offices within relevant agencies, and requires these departments to produce an annual report on their respective whistleblower programs. Critically, the bill also ensures that whistleblowers will receive between 15% and 50% of funds recovered by the United States. For individuals coming from poorer countries where wildlife trafficking is especially problematic, these sums could be enormous. This will give whistleblowers a powerful incentive to come forward.
The education provisions of the bill are more important. Whistleblowers come forward primarily because they want to stop wrongdoing. David Colapinto, General Counsel of the National Whistleblower Center, has found that “the number one thing a whistleblower wants is the problem fixed.” By showing individuals in Africa, Asia, or other regions that whistleblower programs exist and enforcement actions can fix the problem of wildlife trafficking, H.R. 5697 will show would-be-whistleblowers that the once fruitless exercise of reporting on wildlife trafficking will now achieve results. And the financial incentives surely won’t hurt.
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the U.S. Endangered Species Act, both passed in 1973, established strong international and American laws against the killing of endangered species. Yet despite these provisions, animals like the elephant, rhino, and tiger are on the verge of extinction. The problem is not that the laws are bad, but that enforcement of them is weak.
Wildlife whistleblowers could change this. They are uniquely positioned to curb the illegal trade and report on the criminal syndicates. H.R. 5697 would harness the power of whistleblowers.