http://pogoblog.typepad.com/pogo/2008/03/whistleblowing.html

Whistleblowing Is Not Industrial Espionage: The Unjust Ironies of the Gerald Eastman Case

Behind the liberal latte-sipping, post-industrial idea of Seattle that rests in the national consciousness, the reality is quite different.  The town and its environs is an industrial powerhouse and long ago was a major center of the labor movement.  For instance, it was the site of America’s first city-wide “general strike” in 1919.  Despite decline, unions there are still strong, largely because it is proudly ground zero for the nation’s number one export industry: aerospace.  And that means, to a large extent, Boeing. 

Seattle residents still consider it a slap in the face when Boeing’s corporate headquarters moved to Chicago in 2001, but the core of the commercial aviation part of the company remains.  That is considered the heart of the company, with the workers, technicians and engineers the lifeblood of it.  But there is a startling disconnect between the man on the ground at Boeing and the vast apparatus of corporate control that seeks to stifle dissent.  The case of a longtime Boeing quality assurance technician, Gerald Eastman, highlights this.  Moreover, Boeing often hypocritically engages in the same kind of activity for which Eastman was busted and is now facing a jury trial over.  However, Eastman sought to expose issues of the public interest and safety, whereas has Boeing repeatedly simply sought unfair and illegal advantages over its corporate rivals, which ultimately costs the taxpayer and the consumer.

Eastman, after trying to raise concerns about the integrity of Boeing quality assurance system, first through his Boeing quality assurance managers, then through internal chains of command in the company, next through the Federal Aviation Administration (FAA), finally decided he had no other choice.  He decided to bring his concerns to the press.  After a series of articles that did raise questions about Boeing’s activities, including the possibility that Boeing had improperly used classified taxpayer-funded R&D in its commercial aircraft, Eastman was identified by Boeing’s relentless and powerful security team after they received an anonymous tip about Eastman. 

Eastman was caught with thousands of Boeing documents with proprietary markings on them.  Perhaps some of these were truly sensitive documents, however at many major companies, almost every document is marked proprietary whether it contains a trade secret (still a very poorly defined term) or not.  How can a corporate whistleblower provide evidence for his allegations and not use proprietary information (or marked as proprietary)?  The answer: it’s impossible.

While we cannot speak to the guilt or innocence of Eastman, I have talked to him several times since he was arrested.  He and his website will tell you that he sought simply to improve quality control at Boeing out of concern for the public, and to show that classified military information was improperly ending up in commercial aircraft.  A recent Department of Transportation IG report shows that his concerns about Boeing’s quality assurance system had at least some merit, and furthermore, shows that the FAA–one of the places he went to with his allegations–does not always do a good job of identifying systematic safety issues

Other Boeing employees who found serious problems at Ducommun, a major supplier of parts for Boeing, were retaliated against for trying to raise concerns about Ducommun at Boeing.  As their unsealed complaint states (pdf), when they “brought this information to the attention of Boeing management, the initial reaction within the Boeing procurement community was that a serious problem had been uncovered. However, as the ramifications of Boeing’s own quality control deficiencies became understood to Boeing management, a radical change occurred. [The Boeing employees] became the subject of harassment, threats and intimidation. Rather than make disclosure to the United States Federal Aviation Administration (‘FAA’), Boeing chose to cover up and conceal the information from the government.”

According to prosecutors (pdf), some of the documents on Eastman’s computer corresponded with a “March 5, 2006, article revealing engineering concerns that lightning could cause fuel tanks on the 787 to explode.”  Seems Eastman was concerned about aviation safety.  And he wasn’t the only one, at least on this specific issue: Vince Weldon, now a retired Boeing engineer, had a similar concern about the 787 and lightning (pdf) and some believe was arguably forced out of Boeing because he had raised concerns.

The Seattle Times article supposedly based in part on documents found on Eastman’s computer seems to bear out much of Eastman’s belief that Boeing has indeed improperly migrated classified information into its commercial aircraft which are sold abroad.  It reported in 2006 that:

The engineers, veterans of Boeing’s work on the B-2 stealth bomber two decades ago, told [Boeing] investigator Rick Barreiro that technology and know-how developed for that secretive military program would be used in manufacturing the company’s newest commercial jet.

Again, Eastman has written that this technology was stolen from Northrop, the B-2 bomber’s prime contractor:

This information—the technical data and engineering procedures defining how to design composite structures of aircraft not detectable by radar—stealth aircraft—was developed by prime contractor Northrop during B-2 Bomber production for the Air Force, and required both Northrop and federal government approval before Boeing could use this data on anything other than the B-2 Bomber subcontracting work they were doing for Northrop.

Indeed, Boeing has been busted numerous other times for exporting sensitive information overseas and for having the proprietary information of its rivals.  Boeing was order to pay $10 million after it “was alleged that Boeing violated the Arms Export Control Act, and the International Traffic in Arms Regulations by exporting technical data and defense services to Russia, the Ukraine, Norway and Germany ‘without the required approvals from the Department [of State] and, in other circumstances, violated the terms and conditions of approvals that were provided by the Department.'” 

In another case, “The Boeing Company was alleged to have violated the Arms Export Control Act, and the International Traffic in Arms Regulations in connection with its involvement in the Wedgetail project… by violating the express terms and conditions of Department of State munitions license and other authorizations, by exporting defense articles and defense services without a munitions license or other authorization, and by omitting material facts from its applications for munitions licenses or other authorizations.”  Boeing was ordered to pay $4.2 million in this case.

While Boeing was the lead system integrator for the National Missile Defense Program, they were found to be illegally in possession of Raytheon’s proprietary documents (pdf) and had used them to win a major contract for the Exoatmospheric Kill Vehicle part of the program.

In another case, Boeing was found with some 25,000 Lockheed Martin proprietary documents while the two companies competed for the Evolved Expendable Launch Vehicle contract (see this affidavit; pdf). This was part of $615 million settlement Boeing made with the government.

With the Future Combat System Lead System Integrator contract, Army officials and others expressed reservations several years ago, worrying that “Boeing could get an unfair advantage on the work it bids for” since Boeing executives James Albaugh and Roger Krone obtained access to competitor’s secret information, thus weakening company firewalls, according to the Wall Street Journal (cited in testimony before Congress; pdf).

Recently, Alabama Aviation has claimed, in a bid protest filing with the GAO, that Boeing had improperly used Alabama Aviation’s proprietary information to help it defeat Alabama Aviation.

Then there was the massive and now largely-forgotten Justice Department investigation from the 1980s called Operation Uncover, where Boeing and several other defense contractors were engaged in a massive and illegal classified document-swapping black market. At Boeing, investigators even learned about a library filled with classified Pentagon budget documents they were not supposed to have.

Perhaps if Boeing security were focused less on Big Brother-like attempts to stamp out disclosures to the press on issues of public importance from the rank and file, and more on controlling truly sensitive information, the company and the country would be in better shape.  Ironically, Boeing has tried to wrongly cast the Eastman case as one of industrial espionage, when Boeing repeatedly has been among the worst, if not the worst offender of it itself.

According to the Seattle Post-Intelligencer:

A King County Superior Court judge on Monday denied Eastman’s request to delay the trial a week. His public defender asked for more time to gather documents from Chicago-based Boeing Co.

“We haven’t had any time to prepare for my defense,” Eastman said outside the Seattle courtroom.

Senior deputy prosecutor Scott Peterson argued against delaying the trial, saying that the state would begin to lose witnesses March 28. Numerous Boeing executives, including former vice president and general manager of the 787 program, Mike Bair, have delayed travel plans and vacations so that they could testify, Peterson said.

Eastman told me last night:

My trial started today, much to my chagrin. A judge in the morning denied our request for continuance because the prosecution hadn’t given us access to requested files from my computer yet, among other issues. The case was assigned to a judge this afternoon at 1:30 PM PST. Tomorrow jury selection begins. Talk about being railroaded. I guess my right to a fair trial is trumped by the prosecutor’s wish to have a trial on his schedule. It was a bad day, indeed, and I had just begun to get full time representation from my attorney as of last week, and only started substantive work on preparing our defense three days ago.

Again, I nor POGO cannot speak to Eastman’s guilt or innocence.  I find the judge’s refusal to give Eastman more time to prepare a defense troubling, especially considering the uphill battle he faces. He certainly deserves the time and access to information necessary for a fair defense.  Someone’s vacation plans don’t trump the demands of a working and fair justice system.

— Nick Schwellenbach


Nick Schwellenbach
cell # (202) 302 3258
email: schwellenbach@gmail.com

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