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FDA isn’t the only agency snooping in e-mail

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With the Food and Drug Administration’s surveillance of its staff, perhaps “FDA” should stand for the Federal Detective Administration.

Actually, that could be an umbrella agency charged with coordinating all government programs that spy on federal employees. It would be an agency with a list of operations longer than many people realize.

At the moment, the real FDA is at the top of the list because of disclosures this week about the extent of its internal monitoring of some agency workers. “Spying on these employees was explicitly authorized, in writing, by the General Counsel’s Office,” Sen. Charles E. Grassley (R-Iowa) said in a letter to the FDA, as my Washington Post colleagues Ellen Nakashima and Lisa Rein reported Tuesday.

That spying involved what the New York Times called “an enemies list of sorts,” which included tracking employee e-mails to congressional staff and journalists. An FDA statement said the agency “did not impede or interfere with any employee communication to members of Congress, their staff, or the press or with any Congressional investigation.”

Among other things, documents released by the Times indicate the
e-mail surveillance noted “multiple Gmail contacts” with a member of Rep. Chris Van Hollen’s (D-Md.) staff. “The tactics reportedly used by the FDA send a terrible message to those who are prepared to expose waste, abuse or wrongdoing in government agencies,” he said in a Monday letter to Kathleen Sebelius, secretary of the Department of Health and Human Services.

On Tuesday, FDA Commissioner Margaret A. Hamburg sent an e-mail (no word on whether her keystrokes were recorded) to all employees to “reiterate the FDA’s commitment to protecting the rights of whistleblowers who are doing a service by bringing public safety concerns to the forefront.” She also noted the agency’s responsibility to protect confidential information. The monitoring was “limited to the government-owned computers” of five employees, Hamburg said, and the intent “was to determine whether confidential commercial information had been inappropriately released.”

Although the FDA is getting the ink now, it is not alone as it spies on its employees.

In June, members of Congress complained that the Transportation Security Administration was soliciting software similar to the kind the FDA used on employees. The software that TSA wanted would be able to monitor employee computer keystrokes, chats,
e-mails, Web site viewing and other activities, according to Democratic Reps. Bennie Thompson of Mississippi and Sheila Jackson Lee of Texas.

TSA wants software that employees cannot detect or disable, said the letter to TSA Administrator John Pistole.

“It would seem that installation of the type of technology sought in the solicitation would enable TSA to monitor employee communications with the OSC (Office of Special Counsel), the Department’s Office of Inspector General and the Congress of the United States,” the letter said. “It is difficult to see how this serious infringement of Constitutionally protected rights would provide a concomitant increase in the nation’s security.”

Thompson and Jackson Lee called on TSA not to pursue the software, saying it “appears to contradict well-settled policies concerning the ability of Federal employees to communicate with investigative authorities without fear of retaliation.”

TSA said it “must remain vigilant to safeguard sensitive information in order to secure the nation’s transportation systems. This software would be used to assist in carrying out that mission in accordance with all Federal laws and would be reserved for specific instances that meet TSA’s qualifications for such use.”

In May, Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee, complained about the Federal Maritime Commission’s use of e-mail monitoring software made by the same company that supplied the FDA’s spying capability.

In a letter to the commission, Issa said at least six employees had been subjected “to covert surveillance of their computers and e-mails by means of software called Spector 360. According to the company’s Website, this software captures all the workstation activity of a monitored employee. The Committee has learned that the Inspector General for the FMC expressed concern about whether the agency’s use of this software violated federal privacy regulations and requested that agency management stop using it in January 2012.”

A Maritime Commission spokeswoman said it had no public comment, but it is working with Issa’s staff to provide information he requested.

One place where employee surveillance might be expected is within the intelligence community. Employees know that they might have to take lie-detector tests or have their bank accounts scrutinized for unusual income that could indicate bribery.

Yet an Office of the Director of National Intelligence document released by the Federation of American Scientists indicates that members of the intelligence community could be subjected to constant surveillance.

Intelligence Community Directive 700 says the heads of intelligence operations must “ensure all personnel with access to national intelligence . . . shall be continually evaluated and monitored.”

To Steven Aftergood, director of the federation’s project on government secrecy, “That seems excessive. . . . That goes beyond what might have been expected.”

An ODNI representative said “all intelligence community employees using government owned computers, telephones and other communication devices consent to monitoring. The intelligence community does not monitor employee’s personal computers or communication on other personally owned devices.”

In addition to the monitoring, Aftergood is concerned that the integration of counterintelligence and security activities throughout the intelligence community, as described by the directive, could mean that “unauthorized disclosures of information to the media may now be treated with the severity of foreign espionage activities,” Aftergood said.

“In other words, the spy hunters will go after leakers as well as spies and that’s a bit unsettling.”

To read previous columns by Joe Davidson, go to wapo.st/JoeDavidson. He is on Twitter at @JoeDavidsonWP.

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