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Halt Whistleblower Surveillance

Background

On January 25, 2012, and February 14, 2012, six federal employee whistleblowers filed complaints in U.S. District Court (read) and before the U.S Office of Special Counsel demonstrating that the federal government targeted whistleblowers for intrusive, covert surveillance. The surveillance included interceptions of private emails, the installation of special spyware on their government-issued laptops, and screen shots of the whistleblowers’ computer screens.

The targets for the surveillance were chosen solely because of their lawful contacts with a reporter for the New York Times, a letter they wrote to the Presidential Transition Team, and the fact that their agency had identified them as “whistleblowers.” The employees did not leak or disclose any confidential information to the Times or the President-Elect, and these whistleblowers were targeted despite an Inspector General finding that the Whistleblower Protection Act protected them from retaliation.

Stephen M. Kohn, the Execuive Director of the National Whistleblower Center and the lead attorney for the six whistleblowers, explained the importance of these lawsuits:

“At stake in this case is whether the government can use its immense powers to conduct surveillance on its own employee whistleblowers – without a warrant – merely because they engage in lawful whistleblower activities.”

In their lawsuits, the employees, who worked for the Food and Drug Administration and the Public Health Service, alleged that targeted surveillance of whistleblowers violated the First and Fourth Amendments of the U.S. Constitution as well as the Whistleblower Protection Act.

In an investigation conducted by the National Whistleblowers Center, which included filing a Freedom of Information Act (FOIA) lawsuit, the NWC obtained copies of some of the intercepted communications. These documents demonstrate that the FDA spied on the doctors and scientists for years, intercepting communications with Members of Congress and drafts of their OSC whistleblower complaints. The evidence also shows that the FDA used its spying apparatus to identify other federal employees who supported the whistleblowers.

Congressional Investigations

The whistleblowers’ complaints quickly triggered Congressional investigations in both the House and Senate.

Six days after the whistleblowers filed their first complaint, Senator Chuck Grassley, Ranking Member of the Committee on the Judiciary, issued a five-page letter to FDA Commissioner Hamburg expressing a list of “concerns over [her] agency’s treatment of whistleblowers as a result of their disclosures to Congress.”

Representative Darrell Issa, Chairman of the House Committee on Oversight and Government Reform, then launched his own investigation on February 9, 2012. His letter to Commissioner Hamburg echoed similar concerns over the FDA’s targeted monitoring of whistleblowers.

“As you know,” Rep. Issa wrote, “communicating with Congress is a protected form of whistleblowing. Treating such communications in any other way would have a chilling effect on the willingness of federal employees to report waste, fraud, and abuse.”

As the Members of Congress worked together, they quickly concluded that allowing the FDA to interfere with Congressional and OSC investigations would give a green light to other agencies to follow suit. Together, they issued a third letter dated February 15, 2012, requesting that the Office of Special Counsel join and expand the Congressional investigation.

“Denying or interfering with employees’ rights to furnish information to Congress and the OSC is against the law and will not be tolerated at any federal agency,” they wrote. “We respectfully request that OSC initiate an investigation into the facts and circumstances surrounding the e-mail monitoring.”

OSC Investigation

Hours after the joint request from Senator Grassley and Rep. Issa, the Office of Special Counsel (OSC) moved into action, issuing a press release stating that it had, “broadened the scope of [the] existing investigation” into whistleblower monitoring.

The OSC described the FDA whistleblowers’ allegations as “troubling,” and made an important note about the high priority given to whistleblower disclosures under the law. “Even where an agency has a legitimate basis to monitor an employee’s email,” the press release explained, “that basis does not trump the employee’s right to confidentially blow the whistle to OSC or Congress.”

The OSC stated that its broadened investigation would include a review of the monitoring practices at federal agencies beyond those in which the six whistleblowers worked.

In the press release, Special Counsel Carolyn Lerner said, “We encourage other agencies [beyond the FDA] to review their policies to ensure that they are not monitoring or otherwise impeding employee disclosures to OSC or Congress.”

National Security Implications

Providing varied avenues for employees to report wrongdoing increases the chance of effective reporting and prevention of waste, fraud, and abuse. Due to the confidential nature of their work, national security workers are generally limited to reporting to Congress, the OSC, and the Inspector General.

In their letter requesting assistance from the OSC, Senator Grassley and Rep. Issa explained that the outcome of the FDA lawsuit would impact all federal employees, especially those who work with confidential information such as those at national security agencies.

“OSC is specifically authorized to receive both national security information and information would otherwise be ‘specifically prohibited by law’ from disclosure,” they explained. Allowing programs to monitor communications with OSC and retaliate against employees based on this correspondence would devastate the already-limited ability and willingness of national security workers to blow the whistle on wrongdoing.

Federal employees from all agencies use electronic communications to lawfully blow the whistle. The National Whistleblowers Legal Defense & Education Fund (NWLDEF) reports that employees from 20 separate federal agencies have sought assistance from their electronic report system the past 3 months alone.

In the Media

Legal Documents