Whistleblowing and Internal Monitoring/Investigations

Many thanks again to the Faculty of Law at the University of Hong Kong for hosting my presentation on “Whistleblowing & Internal Monitoring/Investigations” yesterday. It was a really interactive and responsive class. The scheduled three hours was barely enough to cover what I estimated to be an hour plus presentation thanks to all the interesting questions and my sincere apologies to the class for rushing through the latter parts of the slides.

One question at the end of the session, what’s the take-away on the topic.

With and without a poison-pen letter from a whistleblower, a pre-transaction reputation/investigative due diligence should always be conducted ahead of all other types of due diligence. This is not a biased opinion but one proven by real life experience from many past cases whereby some serious and damaging red flags on reputation issues/risks could potentially kill a transaction no matter how good the counterparties emerged in the legal, financial and other due diligence – although in some situations clients took advantage of the negative findings to re-negotiate terms for the pending transaction. Information is power!

In a post-transaction external/internal investigation especially one potentially heading to the courts, with and without a poison-pen letter, it is critical to conduct public records research first as the findings could be documented evidence legally admissible in courts that can help the lawyers and clients win the case. If the public records search turns out futile (a likely scenario in non-transparent and opaque jurisdictions), the findings from intelligence becomes pivotal.

I shared with the class an example of a typical court case whereby the client wins if we can prove two people A & B collaborated on a fraud scheme. No surprise they denied even knowing each other. A barrister once told me how he often receives surveillance photos of A & B say having coffee together as evidence – and how he can easily lose the case with such weak evidence. The best evidence is to prove the two have a long history of relationship – they attended the same school (public records), they were past business partners (public records), their companies were sued (public records), they commented on each other’s FaceBook (could be public records), etc. In the absence of any/sufficient public records evidence, findings from intelligence gathering can potentially turn into public records and important evidence. Consider:

– They not only attended the same school but same class, same computer club and even went on a school camping trip to Nepal when they were 10. The latter are findings from intelligence gathering
as they may be difficult to find in public records but the sources could provide photos as proof.

– They were in the same WhatsApp & WeChat groups? A source from the group could provide a screenshot of group members as proof.

– They were neighbors when they were young? This could be difficult to prove in public records because they don’t own the properties then but if there’s a lead they were neighbors, a search on their parents names could lead to documented proof.

Hence the importance of intelligence gathering. And thinking out of the box.

Shhh… Updates on Edward Snowden & the Snowden Refugees

I am proud to share with you a presentation by my fellow alumnus Robert Tibbo, best known as the lawyer for American whistleblower Edward Snowden, on 29 December 2019 in Messe Leipzig, Germany, an update on the situation with Snowden and the Snowden Refugees.

The lecture covers the current global erosion and dismantling of international refugees and constitutional law by increasingly authoritarian democracies and loss of international protection for whistleblowers and the brave people who protect whistleblowers, like the Snowden Refugees.

“The Snowden Refugees still in limbo in Hong Kong are at heightened risk and need public support and donations to survive. The two children in Hong Kong need to be brought to the safety of Canada at the earliest time to remove them from the dangers in Hong Kong and to have all three children reunited in Montreal,” said Tibbo.

Snowden will make an appearance in the 35th minute of the lecture.

“The choices that we made, and the things that you do, they have power. And doing nothing, that’s a choice. Now lots of us would like to think that’s a willing choice. We like to think that we are the sole captain of our own destiny. And that’s the way it’s supposed to be, that’s the way it’s intended, that’s the way we designed the system,” according to Snowden.

“And yet the system today, somehow the actors within it spend an enormous amount of energy trying to make you forget that the things you do affect the outcomes. They’ll tell you not to worry about it, that it’s not so bad. After all it ‘could be worse’. But I say to you it could be better.

“And every time we hear those words, that’s what we need to say – Every system in history, even the most powerful, has been subject to change. And every hack that is performed against us can face a patch.”

Edward Snowden & Hervé Falciani Knew Each Other Before Their Respective Exposé?

As it so happened, everything started and ended in Geneva…

It was a cold morning in mid-December 2008. Hervé Falciani has just finished packing his favorite black Rimowa luggage and a small handy leather bag with his five precious CDs safely tucked to the bottom.

“Mate I’m getting ready to leave for Nice for a few days, to do you know what,” he wrote on his encrypted email.

“Good luck mate. That’s the spirit. Am actually planning to get myself out of Geneva and home for good shortly after the New Year. Keep those stuff safe,” the reply promptly appeared on the computer screen.

“Will do. Thanks so much for all the guidance. Take care!” Falciani penned off, half-wishing his pal Snowden was not serious about leaving Geneva.

Well, that was probably how John le Carré approached his next best-selling spy novel but this opening scene may not be too far from the truth.

Falciani was widely dubbed the Snowden of the banking world when the HSBC exposé stole global headlines early this week. According to his profile, the then-36-year-old dual French-Italian national joined the British banking giant HSBC in 2000, in Monaco where he grew up, and was transferred to HSBC Private Bank (Suisse) in Geneva, Switzerland in 2006.

That was the same year Edward Snowden joined the CIA and the now famous whistleblower behind the NSA revelations was posted to Geneva the following year under diplomatic cover, where he admitted having grown disillusioned with American spy craft. He left Geneva and the agency in 2009.

And as an undercover CIA operative based in Geneva, Snowden probably knew some bankers as The Guardian once reported:

He described as formative an incident in which he claimed CIA operatives were attempting to recruit a Swiss banker to obtain secret banking information. Snowden said they achieved this by purposely getting the banker drunk and encouraging him to drive home in his car. When the banker was arrested for drunk driving, the undercover agent seeking to befriend him offered to help, and a bond was formed that led to successful recruitment.

The possibility that Snowden and Falciani knew each other may be a novelist’s creation and a trivial even if it’s true. But nevertheless, it would open up many possibilities.

Consider, for example, both claimed to have reported to their superiors, who ignored their respective complaints and warnings. Both became whistleblowers and accused for their actions. The two IT experts stole and released troves of internal data to the media – Falciani, the systems specialist of the HSBC Private Bank in Geneva now under the global spotlights, reportedly met French tax investigators at a cafe in Nice airport before Christmas of 2008 and handed them five CDs worth of confidential data pertaining to some 130,000 clients and 300,000 private accounts from 200 countries – which eventually reached then Finance Minister of France Christine Lagarde, who subsequently shared it with other countries.

And the rest was history as we know today.

Snowden is scheduled to speak via video-conference this Friday to the International Students For Liberty Conference in downtown Washington, D.C. Would be interesting to hear what he has to say about the HSBC exposé and… his friend Falciani.

Shhh… WikiLeaks' Cousin AfriLeaks – A New Anonymous Whistleblowing & Open Data Platform for Africa

AfriLeaks, a brand new anonymous whistleblowing platform, will be launched end November but unlike the renowned and established WikiLeaks, this African cousin will not be releasing secret information directly to the public.

“[AfriLeaks will] provide a secure tool for connectivity between the whistleblowers and the media who then investigate the substance and character of the leak,” according to Khadija Sharife of the African Network of Centers for Investigative Reporting (ANCIR) – the organization that will host the platform – in a Deutsche Welle report earlier this week

According to Deustche Welle, unlike WikiLeaks’ aim to publish and disclose information, “AfriLeaks will be there to provide leads for stories to media and research organizations. The new platform will allow whistleblowers to choose the media or research organization to which they want to send the information”.

Assange-Bio

WikiLeaks founder Julian Assange may be smiling. According to a biography (above), Assange described “going to Africa and testing my ground” in the early days of WikiLeaks where one of the very first story his whistleblowing platform broke was on Kenya – which was then fed to The Guardian who ran “The Looting of Kenya” as a front-page story. The article was subsequently picked up by the Kenyan media.

“From our point of view, the leak supported the idea that oppressed media organizations could suddenly be freed when a story that mattered to them – and which they couldn’t reveal on their own – was given legitimacy and the oxygen of international exposure first,” according to the book.

“We kept at it, kept publishing stuff that the African papers were too frightened to publish…”

Was Edward Snowden A Spy?

Or was Dick Cheney looking for a cheap excuse to play politics?

Edward Snowden with his sudden departure from Hong Kong for Moscow and eventually elsewhere, possibly a country hostile to the US, would reignite the question if he’s a spy or double agent.

But the allegations made last week by former US vice president Dick Cheney that the National Security Agency whistle-blower Edward Snowden could be a spy for China is off track, and he knows it, and are a deliberate public distraction as the Obama administration searches for scapegoats in the midst of defending the NSA surveillance programs with their one and only trump card.

Snowden left with his passport annulled, a warrant on his head plus criminal charges of espionage, theft and communicating classified intelligence to unauthorized persons.

But here is the dichotomy: While the corporate world is still coping with US regulations on better corporate governance practices, where does the notion of whistleblowing stand right now?

Please read the entire column here.