The New York Times has revealed the U.S. Food and Drug Administration conducted an extensive spying campaign against its own scientists. The spying began after the scientists warned the FDA had faultily approved medical imaging devices for colonoscopies and mammograms that endangered patients with high levels of radiation. The covert spying operation led the agency to monitor the scientists computers at work and at home, copying emails, thumb drives, and even monitoring individual messages, line by line, as they were being typed in real time. Messages monitored included emails to journalists, to members of Congress and even to President Obama himself. The agency also created an enemies list.
Senator Chuck Grassley of Iowa, the top Republican on the Senate Judiciary Committee, has urged U.S. law enforcement officials to investigate whether the FDA violated the law in its surveillance of employee email. In a letter to FDA Commissioner Margaret Hamburg sent Monday, Grassley wrote, “Continued stonewalling and secrecy about the spying on these employees protected disclosures is unacceptable.”
Stephen Kohn talking:
Im representing the seven FDA doctors and scientists who blew the whistle on serious health and safety violations on medical devices being approved by the FDA. One CT colonoscopy device that they exposed made it onto the market, 600 to 800 times the radiation dosage of similar devices that are more effective. I mean, youre talking about a lot of political pressure, a lot of financial pressure, thats just totally outrageous in the medical and FDA context.
Major corporations. This particular device and similar devices, General Electric. Now, what these scientists atwell, Ill tell you how it was discovered, this large domestic surveillance operation. One of these scientists was applying for a job and just went on to Google to see what FDA was saying about him or herwere keeping this persons identity confidentialand discovered that FDA had uploaded on Google thousands and thousands of pagesnow, at least 80,000, I think may be even more. Essentially, their domestic surveillance program, a large piece of it, got uploaded on Google for everyone to see. And for the first time, we now have a glimpse into what domestic surveillance of whistleblowers looks like in this country with the modern technological developments.
FDAs statement that you read is ludicrous. They fired these people after they learned they were going to Congress and to federal law enforcement officials. They had specific targets of all of their contacts with members of Congress, specific targets of their contacts with law enforcement, as they tried to blow the whistle on these devices. Any statement of FDA that this was somehow benign or limited to leaks is absolutely false and proven by these documents.
But whats incredible here is the United States government justifies going after whistleblowers through these leak investigations. We have lived through it in the national security context. Weve seen it in many cases where the agencies go to the public and say, “Hey, its a leak of confidential information. Its legitimate.” But what were able to see in this inside picture of domestic surveillance, it began with the pretext of a leak. But in the opening documents, they then targeted all communications between the whistleblowers, even if they had no access to the so-called trade secret information, which the majority did not. So they went after not just the one whistleblower who they thought may be the leaker, but six others who were just whistleblowers.
And then it just evolved. Then they learned they were going to Congress, so they had specific targets: congressional communications. Then, under federal law, all federal employees can fileconfidentiallysafety allegations with an organization known as the Office of Special Counsel. By statute, these communications are protected. Employees are given anonymity and confidentiality. Its kind of like we see in many workplaces: “Contact this number or this office, and we guarantee you secrecy.” And guess what? FDA targeted those communications. They intercepted their confidential whistleblowing disclosures. So, who was violating the law? It was FDA, because they were violating the confidentiality rights. They were looking at these safety allegations before they were even filed with law enforcement. There were able to develop defenses.
And most significantly, we learned that they fired one of the most respected radiologists in the United States of America, an incredible medical doctor, about 40 days after they learned that he signed an agreement with attorneys to file these chargeslawfullywith the Office of Special Counsel. Yes, they were intercepting attorney-client communications. They were watching them as they negotiated with counsel. They found out the specific date they hired lawyers to file health and safety concerns about cancer detection devices. And clearly, they just went into high gear. They wanted to fire him, so they could present him as a disgruntled employee whos concerned about his termination, to deflect their own wrongdoing.
Dr. Robert Smith, who formerly ran radiology over at Yale University. Hes, without a doubt, an incredible medical doctor. He was an asset to the U.S. government. He had incredible skills. And they didnt care about that; they wanted him out.
What they did was they put spyware into the computers. Were not sure how far it moved. We know it went into thumb drives. It went into their own property. And this spyware enabled them to do keystroke analysis, so they could get all the private passcodes of the scientists. So they could get into theirso they had the ability to get into their medical records, their financial records, their confidential Google-to-Google communicationsall that capability, they had.
They also had cameras, which would take a photo of any image on your screen, pretty much maybe every 30 seconds or minute. So if you had an image on your screen that you were not saving, you were merely looking at, they took a photo of it. And so, you could get a photo of a dog or anything else. So, thats what was going on. They took personal information, clearly.
They actually tracked one of the scientists, who was applying for a job. He had gotten fired, and he was looking for a job back in the agency. So they got all his employment stuff. They just seized it. And then they issued a warning through this other memorandum saying, you know, “This doctor is looking for a job again.” And then there were specific instructions to monitor emails of him trying to get work.
one congressman, Van Hollen, was specifically put on it. Aides for Senate and House were put on it. Journalists were on it. Scientists and doctors were on it. This is the insidious nature of electronic surveillance, because once they had the first whistleblower, Dr. Smith, target number one, they were able to learn who he was talking to and who was supportive of what he was trying to change. They were able to then identify all the other whistleblowers and then people who endorsed them. And then they created a list. And this list set forth additional targeted monitoring or surveillance. So, its clear by looking at the 80,000 documents that they started specific searches into Congress, and they would use the names of the aides or the representatives that they were collecting through this system.
So you can see how dangerous it is, because the emailthe way people do emails with chains and, you know, sending one to one person and another, its very easy to get caught up, because you might think youre confidential, and you send an email to someone else who thinks theyre supportive, on your own computer, privately, they send it to somebody else, they send it to somebody else, and voilà, it gets caught up in the FDAs spy network.
But because they had no controls, they clearly werent interested in leaks; they were interested in suppressing dissent and learning who was blowing the whistle, what they were blowing the whistle on, and who supported them. So this monitoring just mushroomed, and the enemies list becomes an integral part of the monitoring. You have to give a list to the spies and tell them who to look for. And that list was growing. The first one we saw had seven people; the second one we saw had 21 people. And again, weve only seen two of those lists. Theres probably numerous others as this campaign continued to mushroom. Weve seen what I call one iceberg. Its still the tip of it. Theres many, many more documents, and we have a Freedom of Information Act lawsuit. Were trying to find them all.
in April 2010, in response to a New York Times article, lawful article complaining about this overexposure to radiation, they commenced a series of monitoring. But we also have documents that go back to 2009, when a group of these scientists wrote a letter to President Obamas transition team. So we actually think there was an initial spy campaign in 2009 and then a second one in 2010 that went on for a long period of time. But its confirmed, the 2010 spying is completely confirmed, because the agency uploaded these documents to destroy the reputation of these whistleblowers forever, because they took raw, personal data from emails and put it on Google,
what actually happened, this scientist was looking at him or herself. They were in the process of a major job interview and just wanted to know, if their prospective employer was looking them up online, what would they find. And voilà, this scientist found all those documents. And believe me, he or she nearly had a heart attack. Its like, “Oh, my god! Look whats out there about me.” Its all the private emails.
And we think that thatthat the agency used this contractor because we have this FOIA lawsuit, and we fear that they were moving documents into the possession of a contractor to avoid disclosure under FOIA. They could claim, “Oh, we dont have the documents.” Theyve been fighting us for two years on the production of some of these materials. So I dont think the movement of these thousands of pages from government possession to a private contractorit was not accidental, and it was not done with a good intent.
– source democracynow.org
Stephen Kohn, attorney for the FDA whistleblowers and executive director of the National Whistleblowers Center.