NYT Reports FDA Snooped on It’s Whistleblowers

As California whistleblower lawyers, we read with interest a recent article in the New York Times which reports that the Food and Drug Administration (FDA) has been keeping tabs on its own scientists and others. The tracking included such activities as private emails to Congressional members, lawyers and many others in high places, including the President.

Why would the FDA do this? Apparently the trigger was alleged disclosure of confidential information possibly by several scientists. After what was described as initially a narrow investigation, the probe eventually expanded to a “much broader campaign to counter outside critics of the agency’s medical review process, according to the cache of more than 80,000 pages of computer documents generated by the surveillance effort,” the NYT reporters noted.

Now that the surveillance has been revealed, the FDA is said to be defending the surveillance saying that it was done out of concern that some internal scientists were
” ‘leaking confidential information about the safety and design of medical devices.’ ” They also defend the matter stating that they were looking for improper leaks, not trying to halt appropriate protected communications.

Interestingly, the narrow issue involved in the early stages of this matter was the claim by internal scientists that the agency had allowed certain medical devices to pass approval despite what the scientists believed were harmful levels of radiation exposure. Specifically, these were for mammograms and colonoscopies.

Although there has been some litigation surrounding the surveillance which was brought in 2010 by some of the target scientists, the extent of the operation was only recently revealed. The problem with the legality of the surveillance is the potential that the law could have been broken in that protected communications might have been subject to surveillance.

As we have noted in prior posts, whistleblowers are protected under the law. This is to encourage those seeing wrongs to right them. So communications to their lawyers, and others in a position to help, are supposed to be confidential. Just as is the case with an employer who uses technologies to legitimately monitor the communications of their employees, seeking confidential communications from a home computer for example, may cross the line. Some Congressional members are very concerned about this activity, since it could silence the rights of government employees to point out potential wrongdoing or abuse.

The San Francisco whistleblower attorneys of Hersh & Hersh represent whistleblowers and can answer questions concerning the procedures and protections for employees who report fraud or other wrongdoing on the part of their employer. To learn more please contact our whistleblower law experts for a confidential consultation at no charge to you regarding your concerns.