U.S. Special Counsel Warns Agencies Not to Spy on Whistleblowers

FDA Whistleblowers’ Complaint Sparks OSC Guidance Memo on Electronic Surveillance

Today, U.S. Special Counsel Carolyn N. Lerner issued a formal memorandum that the Office of Management & Budget (OMB) sent to the Chief Information Officers and General Counsels of all executive departments and agencies stating that electronic surveillance of an employee’s contacts with an Inspector General and/or the Office of Special Counsel (OSC) is illegal.

The Special Counsel’s action was sparked by allegations of illegal surveillance of the Food and Drug Administration (FDA) whistleblowers supported by the National Whistleblowers Center (NWC).

Special Counsel Carolyn Lerner was appointed by President Obama to run the Office of Special Counsel, the federal agency responsible for ensuring that the federal government does not retaliate against whistleblowers.

In her memo, the Special Counsel stated:

We strongly urge Executive departments and agencies to evaluate their monitoring policies and practices, and take measures to ensure that these policies and practices do not interfere with or chill employees from using appropriate channels to disclose wrongdoing….Agency monitoring specifically designed to target protected disclosures to the OSC and IGs is highly problematic. Such targeting undermines the ability of employees to make confidential disclosures. Moreover, the deliberate targeting by an employing agency…could lead to a determination that the agency has retaliated against the employee.

In January 2012, the FDA whistleblowers filed a complaint documenting how FDA officials conducted special targeted monitoring of employees who blew the whistle on the FDA’s illegal approval of unsafe medical devices to the New York Times, the Inspector General and the OSC. The FDA utilized spyware to secretly monitor the whistleblower’s computers and used other technology to gain access to their password-protected Gmail-to-Gmail communications to Congress, the Office of Special Counsel, and other oversight authorities.

Stephen M. Kohn, Executive Director of the National Whistleblowers Center and lead counsel for the FDA whistleblowers, stated:

This is a significant first step in protecting the Constitutional rights of federal employee whistleblowers. This is the first time limits have been placed on the federal government’s ability to monitor employee emails. The OSC’s guidance memorandum provides additional support for the NWC’s position that FDA improperly conducted surveillance in violation of employees’ freedoms of speech, privacy, and association, as well as their freedom against illegal searches.

The targeted monitoring of whistleblowers in all government agencies must stop immediately. It has created a tremendous chilling effect on the willingness of federal employees to speak up about what they witness. This affects not only public health and safety but also the personal wallet of every American taxpayer.

Managers who illegally spy on whistleblowers must be held accountable for their actions.

Civil servants who believe that they were illegally monitored for raising issues should immediately consult an attorney, file a complaint with the OSC, and seek redress.


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