- The Washington Times - Wednesday, February 26, 2014

The Food and Drug Administration monitored employees’ activities online without ever considering the legality of the surveillance, a federal investigator said Wednesday.

The report says the FDA never fully assessed whether its surveillance violated employee rights and didn’t seek legal counsel on the issue, which drew criticism from Republican lawmakers.

“The misconduct that we’re looking at isn’t just overreach, it mirrors a famous book and movie ripped from the pages of George Orwell’s ‘1984’: constant monitoring of your screen,” said Rep. Darrell Issa, California Republican and chairman of the House Oversight and Government Reform Committee.

The FDA was concerned that its employees at the Center for Devices and Radiological Health (CDRH) were leaking sensitive documents to the press, so they started surveillance on several scientists. The scientists, meanwhile, have accused FDA leadership of pressuring them to approve certain medical devices, and may have released the documents to show what they say was happening.

But the FDA’s monitoring may have crossed the line, said the Health and Human Services inspector general in a report released Wednesday. Before taking action, officials should have questioned whether their surveillance was legal.

“We found no evidence that CDRH or FDA considered these legal questions before initiating surveillance,” investigators found, and said officials could not guarantee “their investigations were conducted in accordance with laws and regulations.”

The New York Times reported in 2012 that the FDA was monitoring several of its scientists, and the IG was asked to investigate. Members of Congress launched their own investigation, culminating in the House hearing the same day the IG’s report was made public.

“The managers kept looking for information that would convince the inspector general to seek a criminal prosecution. It was a sort of management by investigation,” said Sen. Chuck Grassley, an Iowa Republican who helped lead the investigation and testified at the hearing. “That’s no way to run an agency.”

FDA’s chief operating officer, Walter Harris, said the agency has implemented guidelines for tracking employees’ actions online and that “monitoring is utilized for appropriate purposes and takes place for no longer than necessary.”

The software FDA used to spy on its scientists was too broad, the IG said, including taking screen shots of some employees’ computers every few seconds, thereby capturing not just work but often personal things as well. Plus, although not targeting specific e-mails, the broad monitoring recorded messages FDA employees sent to members of Congress and to their personnel lawyers.

Although an agency banner on websites warned employees that they should expect no privacy on work computers, the FDA still should have considered the issues of privacy before beginning surveillance, inspectors said.

Several of the scientists involved in the case were fired or put on leave, and are now involved in litigation over the legality of the surveillance.

This article based in part on wire service reports.

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