NSA Fails to Include Whistleblower Protections in Non-Disclosure Agreements

The National Security Agency (NSA) has been found to routinely fail in informing its employees about their rights under whistleblower protection laws when they sign non-disclosure agreements (NDAs), according to a report released by the agency's inspector general. Although the NSA is not officially subject to the Whistleblower Protection Enhancement Act, Congress has mandated that most of its provisions apply to the agency through annual appropriations laws since 1988, excluding certain aspects related to the U.S. Office of Special Counsel.

The inspector general's report highlights that most of the NDAs used by the NSA do not reference federal whistleblower protections, which may leave employees unaware of their rights to report violations of law or instances of waste, fraud, and abuse. The report identified five unique NDAs developed by the NSA, with only one, the NSA’s Security Agreement, containing some language related to whistleblower protections, while the other four completely omitted such references. Additionally, the inspector general noted five other agreements that implied nondisclosure obligations but also failed to include the necessary whistleblower protection provisions.

This report comes at a time when the Trump administration is considering implementing a standardized NDA for government use, a proposal that has faced bipartisan criticism due to concerns about its potential chilling effect on employees who witness misconduct. Senator Chuck Grassley, a Republican from Iowa, who requested the review, has voiced concerns regarding the implications of such a standard NDA.

Furthermore, the report indicates that the process for NSA employees to access compartmented information also includes nondisclosure provisions that lack the required whistleblower protection language. Subject matter experts interviewed for the report explained that individual offices create their own access agreement brief sheets using a template, and the acknowledgment of these brief sheets serves as the NDA. However, the required whistleblower protection provisions were notably absent from the reviewed templates.

In light of these findings, the inspector general has recommended that the NSA establish a process to ensure that all nondisclosure policies, forms, and agreements include the mandated whistleblower protection language. The NSA has concurred with these recommendations and plans to assign compliance oversight to the agency’s chief of staff.