In a remarkable testament to America's early commitment to governmental accountability, the Continental Congress passed what historians consider the world's first whistleblower protection law in 1778, shortly after the Declaration of Independence. The law emerged from a dramatic confrontation between ten brave sailors and marines and Commodore Esek Hopkins, the Continental Navy's commander in chief, setting a precedent that would shape American democracy for centuries to come.
The story began on February 19, 1777, when ten officers gathered below deck of the USS Warren to sign a petition documenting serious abuses by Commodore Hopkins. Despite his powerful connections—his brother was Stephen Hopkins, a Declaration signer and former Rhode Island governor—the officers detailed numerous instances of misconduct. Their complaints ranged from Hopkins's defiance of Continental Congress orders to his "inhuman" treatment of British prisoners. Captain John Grannis, driven by what he described as "zeal for the American cause," personally delivered the petition to Philadelphia, testifying that Hopkins's behavior was so erratic that he sometimes questioned the commander's sanity.
The Continental Congress's response was swift and decisive. Hopkins was suspended and ultimately removed from command in January of the following year. Hopkins retaliated by filing criminal libel suits in Rhode Island against the petitioners. Two of the whistleblowers, Richard Marven and Samuel Shaw, were arrested and jailed. Their subsequent appeal to Congress led to the historic July 30, 1778 resolution that established the first whistleblower protections in American history, declaring it the duty of all persons in United States service to report misconduct to proper authorities. Congress went further by paying for Marven and Shaw's legal defense and authorizing the public release of records related to Hopkins's removal—a remarkably modern approach to transparency.
This foundational commitment to protecting whistleblowers was reinforced during the Civil War with the False Claims Act of 1863, also known as the "Lincoln Law." Facing widespread contractor fraud—including uniforms that dissolved in rain and artillery shells filled with sawdust—the government empowered private citizens to file lawsuits against fraudulent contractors on behalf of the federal government. The innovative law offered whistleblowers half of any damages recovered, creating a powerful incentive for exposing corruption. This legislation remains active today, helping the Department of Justice recover billions in fraudulent claims against the government.
The evolution of whistleblower protection continued into modern times with the Whistleblower Protection Act of 1989 and its enhancement in 2012, which extended protections to federal employees in the intelligence community. Notably, the protection of whistleblowers have been reinforced during periods of technological and economic transformation. Following the 2008 financial crisis, Congress passed the Dodd-Frank Act, which expanded whistleblower protections and created incentive programs at the Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC). These programs have proven remarkably effective: the SEC reports that whistleblower tips have led to over $6 billion in sanctions, while the CFTC attributes nearly one-third of its investigations to whistleblower disclosures.
These laws represent the continuation of a principle first established by the Founding Fathers: protected disclosure of wrongdoing is not merely a right but a civic duty essential to democratic governance. From those first ten sailors aboard the USS Warren to modern-day federal employees, whistleblowers have played a crucial role in maintaining governmental accountability and protecting the public interest.
The history of American whistleblower protection legislation now faces a new task— to ensure protections for those who expose corporate misconduct as transformative technologies, such as artificial intelligence (AI), are developed without established safeguards. Rapid advancement in AI has outpaced regulatory frameworks.
Current developments in AI development suggest a similar need for specialized whistleblower protection. In June 2024, current and former employees at OpenAI and Google DeepMind publicly highlighted risks including potential societal inequalities, misinformation concerns, and challenges in maintaining control over autonomous systems. Their statement called for specific corporate commitments: ending the use of anti-disparagement clauses in employment contracts, establishing anonymous reporting systems for safety concerns, and fostering internal cultures that support open criticism.
California's recent attempt to address these concerns through SB 1047, which Governor Gavin Newsom vetoed in September 2024, would have provided legal protection for employees reporting potential safety violations or unreasonable risks in AI development. The bill incorporated several key provisions: protection for employees with "reasonable belief" of violations, mandatory anonymous reporting channels, and extension of protections to contractors and subcontractors.
The current legal framework for AI whistleblowers remains fragmented. Federal protections under the Sarbanes-Oxley Act apply only to publicly traded companies and their subsidiaries, leaving employees at private AI firms without clear safeguards. State-level protections vary significantly, creating a patchwork of regulations that can be difficult for potential whistleblowers to navigate.
This regulatory gap has practical consequences. As noted by Harvard Law Professor Lawrence Lessig, who has represented OpenAI employees raising concerns about the company's practices, the lack of clear protections can discourage employees from reporting potential safety issues. Helen Toner, former OpenAI board member, testified before Congress that potential whistleblowers often struggle to determine whether existing protections apply to their situations.
The implementation of AI-powered compliance systems has introduced additional complications. While these systems can help detect fraud, they can also be used to monitor potential whistleblowers. Darrell West of the Brookings Institute notes that companies can now use AI to analyze employee communications, track online activity, and identify patterns that might indicate whistleblowing behavior. This technological capability, combined with limited legal protections, may create significant deterrents for employees considering reporting safety concerns.
The evolution of AI technology and its increasing integration into critical systems suggests that comprehensive federal whistleblower protection is needed. Senator Chuck Grassley (R-Iowa), who leads the Senate whistleblower caucus, has emphasized the importance of strengthening protections in evolving industries like AI. Senator Ed Markey (D-Mass.) has introduced legislation (S. 5152) that includes specific whistleblower and anti-retaliation protections for AI-related concerns.
Historical precedent suggests that effective oversight of emerging technologies requires both clear regulatory frameworks and protected channels for internal reporting. As AI development continues to advance, the establishment of comprehensive whistleblower protections may prove essential for ensuring responsible innovation and public safety. The success of previous whistleblower programs in other sectors indicates that such protections can serve both regulatory and public interest goals while supporting technological progress within appropriate safety boundaries.