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Posted at 03:23 PM ET, 01/30/2012

FDA surveillance lawsuit raises complex issues

The lawsuit that six Food and Drug Administration employees filed last week alleging improper monitoring of their personal e-mail is the latest in a series of efforts to test the scope of the government’s authority to track the digital activity of its employees.

Privacy experts say the courts can expect a surge of similar cases as the lines between home and work increasingly blur in the federal workplace and beyond. Many say court guidance is needed to help federal agencies and employees navigate a complex area of the law.

In the lawsuit filed in U.S. District Court last week, the six FDA scientists and doctors alleged that their constitutional privacy rights were violated when the agency snooped on their personal e-mail after they complained to Congress that the agency was approving medical devices that posed unacceptable health risks.

The scientists and doctors worked for an office charged with overseeing such devices and were monitored while alerting Congress to their concerns about the safety of the medical devices and preparing whistleblower lawsuits on the same subject, according to e-mails and FDA memos that the employee gathered through Freedom of Information Act requests.

The monitoring happened on government computers that carried warnings telling employees that they should have no expectation of privacy on the machines, but the case has struck a nerve because the employees believed they were acting lawfully and, as a result, should not had their activities tracked electronically by superiors.

One plaintiff, former FDA biologist Ewa Czerska, said of the government’s monitoring: “It feels like your house has been burglarized.”

The Supreme Court has held that a public employer’s search of an employee’s workplace must be reasonable. But the lower courts are split on what degree of intrusion is reasonable in cases involving computer surveillance.

The government’s position on monitoring of its networks was most clearly laid out in 2009 when the Justice Department’s Office of Legal Counsel issued an opinion on cybersecurity. That opinion resulted in a model computer-use agreement that federal agencies may follow, giving wide latitude to the government to monitor employees’ computers as long as it happens in pursuit of a lawful purpose.

But the definition of a lawful purpose is contested. Sharon Bradford Franklin, senior counsel of The Constitution Project, a civil liberties group, said the category should include mainly the investigating of serious breaches, such as when an employee is suspected of watching or purveying child pornography.

She said the FDA case should be understood in a different light given that the scientists and doctors believed they were acting in the public interest. “It is very troubling to have broad-scale surveillance of what should be protected communications — whistleblower activities,” she said.

But Paul Rosenzweig, a former senior policy official at the Department of Homeland Security, noted that the scientists could have simply used their own personal computers if they wanted to prevent monitoring. (At least one of them, Czerska, did not have her own computer, and used an FDA laptop. The plaintiffs in the lawsuit noted that FDA policy encouraged employees to use their work computers for personal business so long as it did not interfere with government business and was done on their own time.)

“In this day and age of cybersecurity, when China is stealing us blind, it is unreasonable to expect the government not to monitor Internet traffic to and from government computer systems,” Rosenzweig said. “Therefore any government employee who wants to engage in whistleblowing without the knowledge of his superiors, which may very well be a good thing to do, would be unwise not to recognize that all of his government computer traffic is going to be monitored. I would not want to sacrifice government cybersecurity to protect whistleblowers when they have a ready way of achieving their legitimate objectives — that is, using their home computer.”

Yet Stephen M. Kohn, a whistleblowers’ advocate and the attorney for the FDA scientists and doctors, such that condoning such monitoring could have a “major chilling effect” on employees seeking to raise concerns about wrongdoing with Congress.

“It would be the end of whistleblowing,” he said.

By  |  03:23 PM ET, 01/30/2012

 
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