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FDA spied on e-mail of staff involved in safety dispute

Surveillance also of journalists and aides in Congress

WASHINGTON — A wide-ranging surveillance operation by the Food and Drug Administration against a group of its own scientists utilized an enemies list of sorts as it secretly captured thousands of e-mails that the disgruntled scientists sent privately to members of Congress, lawyers, labor officials, journalists, and even President Obama, previously undisclosed records show.

What began as a narrow inves­tigation into the possible leaking of confidential agency information by five scientists quickly grew in mid-2010 into 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.


Moving to quell what one memo called the ‘‘collaboration’’ of the FDA’s opponents, the surveillance operation identified 21 agency employees, congressional officials, outside medical researchers, and journalists thought to be working together to put out negative and ‘‘defamatory’’ information about the agency.

The agency, using so-called spy software designed to help employers monitor workers, captured screen images from the government laptops of the five scientists as they were ­being used at work or at home. The software tracked their keystrokes, intercepted their personal e-mails, copied the documents on their personal thumb drives, and even followed their messages line by line as they were being drafted, the documents show.

The extraordinary surveillance effort grew out of a bitter, years-long dispute between the scientists and their bosses at the FDA over the scientists’ contention that faulty review procedures at the agency had led to approval of medical imaging devices for mammograms and colonoscopies that exposed ­patients to dangerous levels of radiation.

A confidential government review in May by the Office of Special Counsel, which deals with the grievances of government workers, found the scientists’ medical claims were valid enough to warrant a full investigation into what it termed ‘‘a substantial and specific danger to public safety.’’


The documents captured in the surveillance effort — including confidential letters to at least a half-dozen congressional offices and oversight committees, drafts of legal filings and grievances, and personal e-mails — were posted on a public website, apparently by mistake, by a private document-handling contractor that works for the FDA. The New York Times reviewed the records and their day-by-day, sometimes hour-by-hour accounting of the scientists’ communications.

Congressional staff members who were regarded as sympathetic to the scientists were then cataloged by name in 66 massive directories. Drafts and final copies of letters to Obama about the scientists’ safety concerns were also included.

Last year, the scientists found that a few dozen of their e-mails had been intercepted by the agency. They filed a lawsuit over the issue in September, ­after four of the scientists had been let go, and The Washington Post first disclosed the monitoring in January. But the wide scope of the FDA surveillance operation, its broad range of targets across Washington, and the huge volume of computer information that it generated were not previously known, even to some of the targets.

The FDA defended the surveillance operation in a statement Friday. The computer monitoring ‘‘was consistent with FDA policy,’’ the agency said, and the e-mails ‘‘were collected without regard to the identity of the individuals with whom the user may have been corresponding.’’ The statement did not explain the inclusion of congressional officials, journalists, and others referred to as actors who were in contact with the disaffected scientists.


While federal agencies have broad discretion to monitor their employees’ computer use, the FDA program may have crossed legal lines by grabbing and analyzing confidential infor­mation that is specifically protected under the law, including attorney-client communications, whistle-blower complaints to Congress, and workplace grievances filed with the government.

White House officials were so alarmed to learn of the FDA operation that they sent a governmentwide memo last month from the Office of Management and Budget stressing that while the internal monitoring of ­employee communications was allowed, it could not be used under the law to intimidate whistle-blowers. Any monitoring must be done in ways that ‘‘do not interfere with or chill employees’ use of appropriate channels to disclose wrongdoing,’’ the memo said.

Although some senior FDA officials appear to have been made aware of aspects of the months-long surveillance, the documents do not make clear who at the agency authorized the program or whether it is still in operation.

But Stephen Kohn, a lawyer who represents six scientists who are suing the agency, said he planned to go to federal court later this month seeking an injunction to stop any surveillance that may be continuing against the two medical ­researchers among the group who are still employed there.

The scientists who have been let go say in a lawsuit that their treatment was retaliation for reporting their claims of mismanagement and safety abuses in the FDA’s medical ­reviews.


Members of Congress from both parties were irate to learn that correspondence between the scientists and their own staff members had been gathered and analyzed.