Two top Republicans on Capitol Hill on Monday asked the Obama administration to provide a “complete assessment” of government policy on e-mail surveillance at every federal agency in the wake of disclosures that the Food and Drug Administration secretly monitored the private communications of its own employees.
“The current policy of the U.S. Office of Personnel Management makes clear that employees do not have the right to privacy when using government equipment and that such use may be monitored or recorded,” the lawmakers wrote. “However, FDA obtained e-mails not only from employees’ work accounts, but also from their private, personal e-mail accounts.”
OMB spokeswoman Moira Mack said in a statement: “The Obama Administration strongly supports whistleblower protections and has sought to deliver a more open and transparent government to make it more accountable to the American people.”
Monday’s letter came in response to a Washington Post story in February reporting that the FDA for two years intercepted and stored the Gmail communications of a group of agency doctors who raised concerns with Congress about approvals of cancer screening and other devices despite the doctors’ determinations that the devices were not safe or effective.
The employees, who accessed their Gmail from work computers, filed suit in U.S. District Court in Washington last month alleging the agency violated their constitutional right to privacy. The FDA relied on the information it gleaned through secret surveillance to fire, harass or pass the scientists over for promotion. Their communications with Congress, the Inspector General’s office and the Office of Special Counsel— which investigates claims from whistleblowers—were monitored.
Grassley and Issa are investigating whether the surveillance was legal and if the FDA obtained passwords to the employees’ personal e-mail accounts, allowing their communications on private computers to be intercepted. The doctors had communicated with members of both lawmakers’ staff about their concerns.
The FDA posts a warning on its computers that pops up when a user logs on, notifying employees that they have “no reasonable expectation of privacy” in any data passing through or stored on the system, and that the government may intercept any such data at any time for any lawful government purpose.
But the lawmakers and other critics say the FDA’s purpose appears to have been unlawful because retaliation against a whistleblower is illegal and communicating with Congress is a protected form of whistleblowing.
The lawmakers are asking the Obama administration to tell them:
• Whether each agency has an official policy for monitoring employee e-mail and what it is.
• How the policy distinguishes between personal and official e-mail.
• How frequently monitoring is done and whether information gathered this way is a basis for personnel actions.
• If the policy covers protected communications with Congress or agencies that investigate claims from whistleblower.
• Whether agencies collect usernames and passwords on personal e-mail accounts and what safeguards are in place to prevent the government from monitoring communications that take place on private computers.
• Titles of officials who are responsible for starting surveillance