A group of former FDA scientists who spoke out against the agency's allegedly flawed device-approval process are suing the feds for intercepting Gmail and Yahoo Mail messages by installing spy programs on their work computers. Although the computers were owned by the government, the plaintiffs say they were explicitly granted the right to use them for personal purposes.
Back in January 2009, nine scientists known as the "FDA Nine" anonymously wrote to the leader of then President-elect Barack Obama's transition team "pleading with him to restructure the agency," the Wall Street Journal reported at the time. Among other things, the Food and Drug Administration scientists complained that the agency approved devices in a flawed process that ignored science, and was driven by political lobbying.
A lawsuit filed January 25, 2012 in US District Court in Washington, DC on behalf of six of the scientists (two of whom remain anonymous) says agency officials responded to their whistleblowing by installing spyware on their computers to capture screen shots of private e-mail. The defendants in the suit allegedly stored the e-mails in a file called "FDA 9" with sub-directories related to each of the scientists. The FDA later used the e-mails to file complaints against the scientists with the Office of Inspector General (OIG), claiming that the scientists violated the law by providing information to the media and Congress. The scientists say their actions were protected by whistleblower laws, and the OIG repeatedly declined to take action against them.
None of the plaintiffs still work for the FDA. Two of them, Paul Hardy and Julian Nicholas, are asking for a court order to get their jobs back, with Hardy saying he was fired without cause and Nicholas saying his contract was not renewed by the FDA in retaliation for his whistleblowing. More broadly, the defendants are alleging First and Fourth Amendment violations and asking for a "Declaratory Judgment finding that the United States cannot convert the private e-mail and electronic communications of federal employees without due process of law and just compensation and cannot target whistleblowers for searches and seizures without a search warrant or validly issued subpoena that is narrowly tailored and limits the scope of any such search within valid constitutional parameters."
The defendants in the case include the FDA itself, the Public Health Service, the Department of Health and Human Services, the US government as a whole, Surgeon General Regina Benjamin, Secretary of Health and Human Services Kathleen Sebelius, FDA commissioner Margaret Hamburg, a variety of lower-ranking officials, and 99 unnamed IT employees, who presumably helped facilitate the e-mail gathering.
It stands to reason that workers should be wary of performing personal tasks on employer-owned computers. Monitoring employee computers is generally a trivial matter with modern technology, although the alleged actions of the FDA go beyond what an employee might normally expect, at least if the employees have no cause to think their employers have reason to watch their personal communications. The defendants, however, say in the lawsuit that the FDA's actions not only have a chilling effect on future whistleblowers, but also violated the understanding the agency had with the workers to whom the equipment was provided.
The "plaintiffs were permitted to access private, password protected Private E-mail Accounts from laptops and computers provided by FDA, but for which explicit permission was granted to use for personal purposes," the lawsuit states. "Defendants used this prolonged period of surveillance in an attempt to obtain information that could discredit the whistleblowers or be used by the United States to personally destroy the careers and reputations of distinguished medical doctors and other professionals. When Defendants were unable to find evidence that the Plaintiffs had violated laws, they reviewed the contents of the secretly intercepted e-mails and recommended disciplinary action based on the content and viewpoint expressed in the intercepted e-mails."
Listing image by Photograph by Ollie Brown
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