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FDA whistle-blowers' lawsuit raises questions about email surveillance

Jan. 31, 2012 - 06:00AM   |  

Whistle-blower advocates are lauding a new federal lawsuit that seeks to ban all federal agencies from targeting whistleblowers with selected electronic surveillance and monitoring.

The lawsuit was filed last week by six current and former Food and Drug Administration doctors and scientists who say their personal email accounts were monitored by agency managers for two years because they were whistle-blowers.

The six filed a lawsuit Jan. 25 in U.S. District Court of Washington, claim that top FDA managers monitored and seized emails from their personal Gmail and Yahoo accounts for at least two years. Documents they obtained through the Freedom of Information Act and other means show that FDA began monitoring electronic conversations in 2009, after the employees expressed concerns to the incoming Obama administration and Congress that FDA had approved unsafe medical devices, Stephen Kohn, executive director of the National Whistleblowers Center and attorney for the six employees, said in an interview with Federal Times.

Until now, Kohn said he hadn't heard of agencies carrying out this type of surveillance.

FDA's electronic equipment policy allows employees to use government devices and systems for personal use but warns that information created, stored or transmitted on a government device is public information, unless exempted by law. The policy also instructs office managers to monitor and review "all activities" using government electronic equipment and disclose the content of inappropriate documents.

"If they are doing just basic monitoring to make sure people aren't violating the law," that's one thing, Kohn said. "The biggest problem with what has occurred here is that they targeted whistleblowers." Targeted monitoring, he said, could have a chilling effect on potential whistleblowers who fear their complaints will not be kept confidential.

Documents made public on"> show that FDA monitored and stored the employees' personal emails sent from their government computers, including emails to former staff members and investigators of House and Senate committees and drafts of whistleblower complaints for the Office of Special Counsel.

In May 2010, the Health and Human Services Department's inspector general denied FDA's request to launch a criminal investigation of the employees based on the emails they shared with Congress and others about the agency's process for approving medical devices. But the documents obtained by the employees show the agency continued to monitor and store their emails.

In total, two employees were terminated and contracts for two workers were not renewed, Kohn said. Two other employees still work at FDA.

FDA spokeswoman Erica Jefferson said the agency doesn't comment on pending or ongoing litigation.

FDA must submit a written response to the court by March 26.

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