The Food and Drug Administration (FDA) has admitted to monitoring the personal e-mail accounts of whistleblowers communicating with Congress.
The Food and Drug Administration said Thursday that it monitored the personal e-mails of employees who had concerns about unsafe medical devices beginning in April 2010 . .
While it might be possible to credibly argue that, at work, employees have a diminished expectation of privacy, secret government surveillance of employees' e-mails is a dangerous slippery slope. Invasion of employee privacy was not the only consequence to the monitoring:
The FDA relied on the information it gleaned through secret surveillance to fire, harass or pass over for promotion at least six doctors and scientists who communicated with Congress . . .
The FDA monitored employees who attempted to raise concerns about unsafe medical devices - a danger to health and public safety. Members of Congress were not pleased about the inappropriate surveillance and retaliation:
In a letter Thursday to FDA Commissioner Margaret Hamburg, House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) warned that the FDA’s monitoring of personal communications between FDA doctors and congressional staff was “unlawful and will not be tolerated.” . . . FDA’s purpose appears to have been unlawful because retaliation against a whistleblower is illegal.”
A similar investigation has been launched by Sen. Charles E. Grassley (R-Iowa), whose staff communicated with the FDA doctors about their concerns. Grassley wants to know, in particular, if the FDA obtained passwords to the employees’ personal e-mail accounts, allowing their communications on private computers to be intercepted.
FDA officials claim that a warning to federal employees that Internet activities on government computer systems can be monitored means the employees consented to the surveillance:
. . . . whenever employees log onto the FDA computer system, they are warned that their use of the system may be monitored, intercepted, or recorded in any manner and disclosed to authorized personnel. She said that they are required to affirmatively consent to such monitoring.
It is an incredible stretch to claim the employees consented to monitoring of the content of e-mails sent from their personal G-mail accounts. In fact, many federal employees are told to log on to their personal e-mail accounts instead of using government e-mail for personal business. Moreover, in my experience defending a whistleblower at an agency where the stakes are as high as at FDA, the so-called "monitoring" of government networks does not necessarily stop employees from accessing inappropriate websites or peer-to-peer interaction sites, which can cause a danger to network security.
Nonetheless, when a whistleblower is involved, suddenly many government agencies subject the whistleblower to far greater monitoring and scrutiny. Take State Department whistleblower Peter Van Buren, where State has gone so far as to monitor Van Buren's personal Internet activity on his home computer during his private time.
If whistleblowers are to communicate concerns of gross mismanagement, waste, fraud, abuse, illegality or a danger to public health and safety to the appropriate authorities, including Congress, agencies must not be permitted to use "monitoring" to discipline whistleblowers and send a message to dissuade other employees from whistleblowing.
Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.