Alleging internal spying, six whistleblowers take FDA to court

Six current and former employees of the FDA—all scientists and physicians who worked on reviewing medical devices—have filed suit against the agency, accusing managers of spying on their computer activities. The six allege that they were placed under secret surveillance because they had warned Congress that FDA was approving risky devices.

According to a Jan. 30 news release from Kohn, Kohn and Colapinto, the law firm representing the whistleblowers, FDA fired or antagonized all six after covertly monitoring their personal email accounts over a two-year period. The six filed their suit in U.S. District Court in Washington last week. The suit asks the court for an injunction to stop FDA from “illegally spying on employees’ private communications to Congress and other oversight agencies,” said the firm.

The complaint alleges that FDA began the program after finding out that the employees wrote a letter to then President-Elect Barack Obama and his transition team in early 2009. The letter laid out the details of FDA’s alleged misconduct in approving unsafe medical devices, which included what they called a faulty breast cancer screening device.

The suit also charges that FDA covertly captured the employees’ computer screens and either installed or activated spyware on their workplace computers to monitor their private, password-protected Gmail accounts.

“The managers who spearheaded the surveillance efforts were the same managers involved with the wrongdoing and corruption that the whistleblowers were seeking to report,” reported the law firm. “Lawyers at the FDA and Department of Health & Human Services' Offices of General Counsel, who should have understood that the program breached the employees’ confidentiality, helped FDA managers with their obstruction and retaliation.”

Stephen M. Kohn, executive director of the National Whistleblower’s Center (NWC), issued a statement protesting that the FDA has “declared war on employees who were trying to warn Americans about threats to public health and safety … The FDA’s illegal spying program is not just a problem for the six victims in this case. The day we allow the government to spy on employees based on their lawful whistleblower activities is the day we give up privacy for every honest public servant in America.”

The NWC has posted a special news bulletin detailing the development. The page presents links to numerous supporting documents, including some of the intercepted emails, the whistleblowers’ formal complaint and the Washington Post report that broke the story Jan. 29.

As of press time, the FDA had issued no response to the charges.