World Bank Tribunal Affirms Privacy and Free Speech Rights

WASHINGTON - The World Bank Administrative Tribunal released a far-reaching decision last Friday, June 17, that gives employees of the Bank significant new protections from both excessive punishment for revealing information to the press, and sweeping searches of their computers.

In the case John Y. Kim v. IBRD, No. 448, tried on May 23 in Washington, DC, whistleblower and GAP client Kim challenged the Bank's decision to fire him for providing information to Fox News about conflicts between former Bank President Paul Wolfowitz and the Bank’s Board of Directors. Kim’s termination followed 25 years of service at the Bank with a discipline-free employment record.

GAP was heavily involved in publicizing the concerns of Bank whistleblowers in 2007. The concerns that were raised led to Wolfowitz' forced resignation.

The Tribunal -- one of several internal justice bodies worldwide that oversee the treatment of employees -- ordered Mr. Kim reinstated with payment for his litigation costs. The judgment was rendered in a rare plenary session in Washington, DC, with the participation of all of the Tribunal’s distinguished jurists**. Typically the judges hear cases in smaller panels, reserving only the most important cases for the full Tribunal.

Kim’s lawyers, Thad Guyer and Stephani Ayers, are each longtime GAP adjunct attorneys. Ayers stated “what gives this decision such force and international precedent is that these are renowned and accomplished jurists. Together, they articulate global norms of fairness in an international workplace.”

The Bank's Disproportionate Punishment for Media Disclosures

The 33-page Tribunal decision ruled that while the Bank is entitled to enforce its anti-leak polices, it “must, however, necessarily take into account the intent of the staff member, when he or she committed the act of misconduct, in determining the gravity of the sanction to be imposed.” Kim admitted being one source for a January 2007 article by freelance journalist Richard Behar appearing on Fox News. The Bank fired Kim on the grounds that he “willfully disclosed confidential information to persons outside the Bank with the knowledge that this might affect the reputation” of the Bank negatively. But Kim testified it was his “moral obligation” to correct falsehoods published by the scandal-ridden administration of former Bank president Paul Wolfowitz, who was forced to resign in May 2007.

Behar told the Tribunal in a signed declaration that his “article did not simply show acrimony and warfare between the former President and the board of directors, but it showed that the board was engaged, questioning and not intimidated by the issues” or by Wolfowitz. Supporting Kim’s claim that his disclosures helped rather than hurt the Bank itself, Behar wrote that the “active stance by the board, as portrayed in the leaked minutes, reflected positively on the bank as an institution in so far as it confirmed beyond any doubt that the board did not rubberstamp executive prerogatives” by Wolfowitz and his hand-picked assistants. 

Guyer reiterates this point: “The Tribunal ruled that Mr. Kim’s view was right. While he would accept some discipline for breaching the Bank’s media leaks policy, it was grossly disproportionate punishment to fire him.” The Tribunal’s decision, which is to be officially published on the Bank’s website later this month, will likely set limits on discipline for “leaks” followed by other international bodies. 

The decision held that the operative question is not just what an employee leaks, but why he or she did it.

End of the Wolfowitz Affair

The judges appeared heavily influenced by evidence that in late 2006 and 2007, staff in general were very afraid of senior management: Wolfowitz and members of his inner circle, handpicked and composed of former Bush administration officials, made clear their demoralizing opinion of bank staff. The judges were told that a toxic atmosphere prevailed and staff believed that they were subject to constant monitoring and surveillance. The Tribunal was also told that there were "numerous leaks" to the press at the time, including from these very senior managers. According to the Kim ruling, the judges found that based on the Bank’s own witnesses, “there was indeed a leadership crisis" at the time when Kim leaked documents to the press. 

Corroborating this evidence, the judges noted that Behar

“was heavily involved in investigative reporting regarding governance of the World Bank between 2006 to 2008, and he received extremely sensitive internal bank documents and information from approximately twelve sources, all of whom were current and former employees, contractors, managers and directors of the Bank."

Yet, according to the decision, the judges were disturbed that “the Bank has failed to be even-handed in its investigation of the source of the leaks”, noting that “no other member of staff had been the subject of an investigation or disciplinary action for such unauthorized disclosure of information." The Tribunal concluded that it could “find no plausible explanation” for the Bank’s failure to investigate how such high level documents had reached Kim, who was not a part of Bank management and had no apparent access to confidential board minutes.

“Cyber Due Process”

Guyer, who with Ayers has been assigned by GAP to represent whistleblower clients from Tunisia to Geneva, said: “The most indelible contribution of the Tribunal’s decision is extending ‘cyber due process’ to employees of international institutions, by prohibiting self-interested managers from conducting unlimited invasions of employee computer and email privacy designed to conceal their own misconduct.”

In Kim’s case, the Bank used a powerful forensic tool called EnCase that bypasses all passwords and encryption. The Tribunal cited evidence presented by Kim’s expert witness, Babak Pasdar of the New Jersey-based computer forensics firm BatBlue, that “though this encryption is probably easily broken by an experienced investigator, e-mails within the AOL client software's subdirectory still must be 'broken into' to harvest any useful information” from the employee’s private email accounts. In this case it was an AOL account, but similar dynamics occur with Yahoo, Hotmail, Gmail and others, according to Kim’s lawyers.

In evidence before the trial, EnCase was shown to be so intrusive that U.S. federal court search warrants have limited the way police are allowed to use it. The judges accepted Kim’s arguments that “he had a reasonable expectation of privacy regarding his personal e-mail messages, in particular because some of those messages involved sensitive or confidential communication” in his private life. The Tribunal ruled that “the Bank's search methods of [Kim’s] Bank-owned computer were unduly expansive and did not respect the careful balance identified” in earlier Tribunal decisions. “The Tribunal stresses the need for the Bank to undertake targeted searches so that it carefully balances its interest in electronic files as an employer and property owner with the staff members' interests in a reasonable measure of privacy." The judges unanimously found that “this is particularly important given the increasing use of technologies by which staff members use Bank-issued telecommunication devices for professional and personal business.” 

Significantly, the Tribunal also found that the Bank violated other computer privacy rights. The ruling establishes: “there is no justifiable reason” for the Bank to have refused to provide Kim and his lawyers with proof that its forensic investigators had the proper authorizations to conduct the search before firing him. Before punishing an employee, the judges wrote, the accused employee must be afforded “the opportunity to question the basis of the [Bank’s] authority to search his computer.”

International Impact of the Decision

Although the decision formally applies only to the World Bank, it is expected to influence other tribunals governing staff rights at a variety of international institutions, including the United Nations, International Monetary Fund, International Labor Organization, and a number of regional international development banks.

Guyer explained “all of these Tribunals influence one another since the judges, who specialize in international law, read what each tribunal writes, often rotate from one tribunal to the next, and publish their decisions on the web. In fact, in presenting Kim’s case, we used legal precedents from European courts and organizations that have been grappling with the same kinds of issues.” 

GAP pursued this case because protecting the strong stance Kim took to advance the rights of whistleblowers globally is part of our core mission.

The Tribunal’s decision is final and binding on the Bank effective on the date of its issuance.