When working for a company that is committing fraud, or participating in any other legal activity, as an employee you are allowed to report your company to the federal government, and you are protected to do so, by various laws such as The Whistleblower Protection Act. And many whistleblowers use different methods in order to report their company, such as telephone calls, emails, etc. But, as a whistleblower would you feel comfortable reporting such practices, if you had known that your company was spying on your emails? And, it was legal for them to do so?
This is the ongoing debate currently with The Food and Drug Administration and some of their employees. And, one lawmaker is urging law enforcement officials to investigate whether the FDA violated the law in its secret monitoring of staff emails.
According to Reuters, the top Republican on the Senate Judiciary Committee Senator Chuck Grassley of Iowa said the FDA retaliated against its employees who blew the whistle about unsafe medical devices, and specifically monitored their emails to Congress. He also asked the FDA to explain who at the agency first asked for the email monitoring.
Six current and former FDA scientists and doctors filed a lawsuit in January charging the agency tried to repress warnings about potential corruption in device reviews by retaliating against them for passing information to Congress and the media.
The scandal has recently grown when the New York Times revealed documents detailing the wide scale of the surveillance operation. The documents, which were inadvertently posted online by an FDA contractor, showed the FDA secretly captured thousands of emails the scientists sent privately to lawmakers, their aides, journalists and President Barack Obama.
After reviewing the documents, Grassley said he was referring the case to the Department of Justice, among others, to investigate whether the FDA violated the law on whistleblower protections, and a separate law about the privacy of emails.
“Continued stonewalling and secrecy about the spying on these employees’ protected disclosures is unacceptable,” Grassley said in a letter to FDA Commissioner Margaret Hamburg.
Grassley also asked the FDA to finally explain which official first requested the agency to monitor the private emails of five employees, which began in 2010. The monitoring was authorized by the FDA’s General Counsel, Grassley said.
Grassley first asked the FDA about this matter in January, the FDA has recently said it was still gathering the information.
The FDA claims they only monitored emails to ensure its staff were not sharing “trade secret” information about specific device companies, which is forbidden by law, and that it never stopped the whistleblowers from contacting lawmakers, journalists or government auditors.
“The only individuals whose email was being monitored were (five) FDA employees,” said Erica Jefferson, FDA spokeswoman. “We did not impede or interfere in any way with any employees’ communication to members of Congress.”
In a letter to Grassley sent by the FDA, the FDA also said it is reviewing whether its secret monitoring of staff emails adequately protected whistleblowers.
“FDA is currently reviewing and evaluating its policies and practices to ensure that they are consistent with the law and Congress’s intent to provide a secure channel for protected disclosures,” Jeanne Ireland, the FDA’s assistant commissioner for legislation, said in a letter.
The Office of Special Counsel (OSC), an independent agency that protects federal whistleblowers, in February broadened an investigation into whether the FDA violated the law by keeping track of employee emails to Congress and the OSC. Such emails are supposed to remain confidential.
The OSC and the Office of Management and Budget also sent memos to all government agencies in June, warning them about the legal restrictions on monitoring employees’ emails. The memos suggest other agencies beyond the FDA may face similar issues in monitoring whistleblowers.