Constitutional Law

Judiciary Committee Seeks FDA Gen'l Counsel Memo, Says It OK'd 'Spying' on Email to Lawyers, Others


What began as an effort to determine whether five scientists at the Food and Drug Administration were leaking confidential information ended up as a wide-ranging secret surveillance operation, utilizing “an enemies list of sorts,” the New York Times reports.

In a lengthy weekend story, the newspaper said that the FDA gathered some 80,000 pages during a two-year operation using so-called spy software that allowed the agency to intercept the scientists’ personal email and intercept documents on their thumb drives, even when they were working at home on their laptops. Some of the material that was intercepted reportedly included material sent to lawyers, members of Congress and even President Barack Obama.

Some of the surveillance had previously been reported, but the scope of the program was much broader than previously known, according to the Times.

Although employers, including federal agencies, have discretion to monitor employees’ work, the article says the FDA may have crossed the line by accessing confidential attorney-client information, whistle-blower complaints and workplace grievances, which are legally protected.

The Washington Post (reg. req.) reported that the Senate Judiciary Committee sent a letter Monday to the general counsel’s office of the FDA, claiming that it had authorized the surveillance program in a memo and demanding a copy.

“Spying on these employees was explicitly authorized, in writing, by the General Counsel’s office,” wrote Sen. Charles E. Grassley, R-Iowa. He is the ranking member of the committee.

Responding to a previous letter from Grassley, sent in January, the FDA said in a Friday letter that it is reviewing the surveillance program, Reuters reports.

The 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,” wrote Jeanne Ireland. She is the FDA’s assistant commissioner for legislation.

In a further response today, an agency spokeswoman said it monitored only the five FDA employees and did so only to the extent necessary to determine whether trade secret information was improperly being shared. The FDA did not stop whistle-blowers from contacting lawmakers, government auditors or journalists, said Erica Jefferson.

Additional and related coverage:

ABAJournal.com: “6 Staff Docs and Scientists Sue FDA Over Secret Gov’t Surveillance of Personal Gmail Accounts”

National Public Radio: “FDA Monitors Scientists’ Critical Emails”

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