A group of scientists and doctors filed a lawsuit against the Food and Drug Administration (“FDA”) this week alleging that the FDA was secretly monitoring their personal e-mails accessed through FDA computers because of their whistleblower activity. The allegations also charge the FDA with retaliation against the employees for warning Congress and the media that the FDA was approving medical devices that they thought presented unacceptable risks to patients.
Back in 2007, the FDA scientists and doctors, who worked at the agency’s Office of Device Evaluation, first complained internally that the agency was approving or was about to approve about a dozen radiological devices which were not yet proven to be effective and that posed risks to millions of patients. When their internal complaints went unheard, the group reported the risks to Congress, the White House and the Health and Human Services inspector general.
The group warned of three devices which risked missing signs of breast cancer, another device which falsely diagnosed osteoporosis, and an ultrasound device which could malfunction while being used to monitor women in labor and risk harm to the fetus. They also complained of several colon cancer screening devices which used excessive doses of radiation and risked causing cancer.
The scientists and doctors allege that the FDA thereafter, for a period of 2 years, began intercepting email they sent to congressional staff using government computers through their private Google and Yahoo e-mails. The lawsuit also charges the FDA with using spyware to capture electronic snapshots of staff computer screens which allowed it to get privately stored whistleblower reports and figure out who was involved in whistleblower activities.
The lawsuit alleges that the FDA used this information to harass, retaliate against and terminate the group of employees. The suit charges the FDA with violating their constititional right to privacy by going through their personal e-mails in order to monitor their activity which they claim was legal.
The FDA computers have a warning which is visible to users logging in which states “You have no reasonable expectation of privacy” with respect to any “communications or data” passing through or stored in the system. It also states that the government “may monitor, intercept, and search and seize any communication or data transiting or stored” on the system.
The important lesson to take away from this is that don’t use your company’s computer, blackberry, or any other electrical device to communicate personal information. The group of doctors and scientists here used their personal Yahoo and Google e-mails but they used the government’s computer to convey the information. The FDA’s computers clearly warned them when logging on that they did not and should not have any expectations of privacy.
It is also important to consider the FDA’s actions and their chilling effect on whistleblower activities. After all, the FDA employees’ activities were based on their concern of the health risk posed by the dozen or so devices which were about to be approved by the FDA. The whistleblower statute is one of the government’s most powerful and effective tools to fight fraud, abuse and corruption.
If you have any questions about your rights to privacy at the workplace, call our Employment Law Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you protect your workplace rights.
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