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<div class="timestamp">July 14, 2012</div>
<h1>In Vast Effort, F.D.A. Spied on E-Mails of Its Own Scientists</h1>
<h6 class="byline">By
<span>
<a href="http://topics.nytimes.com/top/reference/timestopics/people/l/eric_lichtblau/index.html" rel="author" title="More Articles by ERIC LICHTBLAU">ERIC LICHTBLAU</a></span> and <span>
<a href="http://topics.nytimes.com/top/reference/timestopics/people/s/scott_shane/index.html" rel="author" title="More Articles by SCOTT SHANE">SCOTT SHANE</a></span></h6>
<div id="articleBody">
<p>
WASHINGTON — A wide-ranging surveillance operation by the <a href="http://topics.nytimes.com/top/reference/timestopics/organizations/f/food_and_drug_administration/index.html?inline=nyt-org" title="More articles about the U.S. Food And Drug Administration." class="meta-org">Food and Drug Administration</a>
against a group of its own scientists used an enemies list of sorts as
it secretly captured thousands of e-mails that the disgruntled
scientists sent privately to members of Congress, lawyers, labor
officials, journalists and even President Obama, previously undisclosed
records show. </p>
<p>
What began as a narrow investigation into the possible leaking of
confidential agency information by five scientists quickly grew in
mid-2010 into a much broader campaign to counter outside critics of the
agency’s medical review process, according to the cache of more than
80,000 pages of computer documents generated by the surveillance effort.
</p>
<p>
Moving to quell what one memorandum called the “collaboration” of the
F.D.A.’s opponents, the surveillance operation identified 21 agency
employees, Congressional officials, outside medical researchers and
journalists thought to be working together to put out negative and
“defamatory” information about the agency. </p>
<p>
F.D.A. officials defended the surveillance operation, saying that the
computer monitoring was limited to the five scientists suspected of
leaking confidential information about the safety and design of medical
devices. </p>
<p>
While they acknowledged that the surveillance tracked the communications
that the scientists had with Congressional officials, journalists and
others, they said it was never intended to impede those communications,
but only to determine whether information was being improperly shared.
</p>
<p>
The agency, using so-called spy software designed to help employers
monitor workers, captured screen images from the government laptops of
the five scientists as they were being used at work or at home. The
software tracked their keystrokes, intercepted their personal e-mails,
copied the documents on their personal thumb drives and even followed
their messages line by line as they were being drafted, the documents
show. </p>
<p>
<b style="color:rgb(255,0,0)">The extraordinary surveillance effort grew out of a bitter dispute
lasting years between the scientists and their bosses at the F.D.A. over
the scientists’ claims that faulty review procedures at the agency had
led to the approval of medical imaging devices for <a href="http://health.nytimes.com/health/guides/test/mammography/overview.html?inline=nyt-classifier" title="In-depth reference and news articles about Mammography." class="meta-classifier">mammograms</a> and <a href="http://health.nytimes.com/health/guides/test/colonoscopy/overview.html?inline=nyt-classifier" title="In-depth reference and news articles about Colonoscopy." class="meta-classifier">colonoscopies</a> that exposed patients to dangerous levels of radiation. </b></p>
<p><b>
</b>A confidential government review in May by the Office of Special
Counsel, which deals with the grievances of government workers, found
that the scientists’ medical claims were valid enough to warrant a full
investigation into what it termed “a substantial and specific danger to
public safety.” </p>
<p>
The documents captured in the surveillance effort — including
confidential letters to at least a half-dozen Congressional offices and
oversight committees, drafts of legal filings and grievances, and
personal e-mails — were posted on a public Web site, apparently by
mistake, by a private document-handling contractor that works for the
F.D.A. The New York Times reviewed the records and their day-by-day,
sometimes hour-by-hour accounting of the scientists’ communications.
</p>
<p>
With the documents from the surveillance cataloged in 66 huge
directories, many Congressional staff members regarded as sympathetic to
the scientists each got their own files containing all their e-mails to
or from the whistle-blowers. Drafts and final copies of letters the
scientists sent to Mr. Obama about their safety concerns were also
included. </p>
<p>
Last year, the scientists found that a few dozen of their e-mails had
been intercepted by the agency. They filed a lawsuit over the issue in
September, after four of the scientists had been let go, and The
Washington Post first disclosed the monitoring in January. But the wide
scope of the F.D.A. surveillance operation, its broad range of targets
across Washington, and the huge volume of computer information that it
generated were not previously known, even to some of the targets.
</p>
<p>
F.D.A. officials said that in monitoring the communication of the five
scientists, their e-mails “were collected without regard to the identity
of the individuals with whom the user may have been corresponding.”
While the F.D.A. memo described the Congressional officials and other
“actors” as collaborating in the scientists’ effort to attract negative
publicity, the F.D.A. said that those outside the agency were never
targets of the surveillance operation, but were suspected of receiving
confidential information. </p>
<p>
While federal agencies have broad discretion to monitor their employees’
computer use, the F.D.A. program may have crossed legal lines by
grabbing and analyzing confidential information that is specifically
protected under the law, including attorney-client communications,
whistle-blower complaints to Congress and workplace grievances filed
with the government. </p>
<p>
Other administration officials were so concerned to learn of the F.D.A.
operation that the White House Office of Management and Budget sent a
governmentwide memo last month emphasizing that while the internal
monitoring of employee communications was allowed, it could not be used
under the law to intimidate whistle-blowers. Any monitoring must be done
in ways that “do not interfere with or chill employees’ use of
appropriate channels to disclose wrongdoing,” the memo said. </p>
<p>
Although some senior F.D.A. officials appear to have been made aware of
aspects of the surveillance, which went on for months, the documents do
not make clear who at the agency authorized the program or whether it is
still in operation. </p>
<p>
But Stephen Kohn, a lawyer who represents six scientists who are suing
the agency, said he planned to go to federal court this month seeking an
injunction to stop any surveillance that may be continuing against the
two medical researchers among the group who are still employed there.
</p>
<p>
The scientists who have been let go say in a lawsuit that their
treatment was retaliation for reporting their claims of mismanagement
and safety abuses in the F.D.A.’s medical reviews. </p>
<p>
Members of Congress from both parties were irate to learn that
correspondence between the scientists and their own staff had been
gathered and analyzed. </p>
<p>
Representative Chris Van Hollen, a Maryland Democrat who has examined
the agency’s medical review procedures, was listed as No. 14 on the
surveillance operation’s list of targets — an “ancillary actor” in the
efforts to put out negative information on the agency. (An aide to Mr.
Van Hollen was No. 13.) </p>
<p>
Mr. Van Hollen said on Friday after learning of his status on the list
that “it is absolutely unacceptable for the F.D.A. to be spying on
employees who reach out to members of Congress to expose abuses or
wrongdoing in government agencies.” </p>
<p>
Senator Charles E. Grassley, an Iowa Republican whose former staff
member’s e-mails were cataloged in the surveillance database, said that
“the F.D.A. is discouraging whistle-blowers.” He added that agency
officials “have absolutely no business reading the private e-mails of
their employees. They think they can be the Gestapo and do anything they
want.” </p>
<p>
While national security agencies have become more aggressive in
monitoring employee communications, such tactics are unusual at domestic
agencies that do not handle classified information. </p>
<p>
Much of the material the F.D.A. was eager to protect centered on trade
secrets submitted by drug and medical device manufacturers seeking
approval for products. Particular issues were raised by a March 2010
article in The New York Times that examined the safety concerns about
imaging devices and quoted two agency scientists who would come under
surveillance, Dr. Robert C. Smith and Dr. Julian Nicholas. </p>
<p>
Agency officials saw Dr. Smith as the ringleader, or “point man” as one
memo from the agency put it, for the complaining scientists, and the
surveillance documents included hundreds of e-mails that he wrote on
ways to make their concerns heard. (Dr. Smith and the other scientists
would not comment for this article because of their pending litigation.)
</p>
<p>
Lawyers for GE Healthcare charged that the 2010 article in The Times —
written by Gardiner Harris, who would be placed first on the
surveillance program’s list of “media outlet actors” — included
proprietary information about their imaging devices that may have been
improperly leaked by F.D.A. employees. </p>
<p>
F.D.A. officials went to the inspector general at the Department of
Health and Human Services to seek a criminal investigation into the
possible leak, but they were turned down. The inspector general found
that there was no evidence of a crime, noting that “matters of public
safety” can legally be released to the news media. </p>
<p>
Undeterred, agency officials began the electronic monitoring operation on their own. </p>
<p>
The software used to track the F.D.A. scientists, sold by SpectorSoft of
Vero Beach, Fla., costs as little as $99.95 for individual use, or
$2,875 to place the program on 25 computers. It is marketed mainly to
employers to monitor their workers and to parents to keep tabs on their
children’s computer activities. </p>
<p>
“Monitor everything they do,” says SpectorSoft’s Web site. “Catch them
red-handed by receiving instant alerts when keywords or phrases are
typed or are contained in an e-mail, chat, instant message or Web site.”
</p>
<p>
The F.D.A. program did all of that and more, as its operators analyzed
the results from their early e-mail interceptions and used them to
search for new “actors,” develop new keywords to search and map out
future areas of concern. </p>
<p>
The intercepted e-mails revealed, for instance, that a few of the
scientists under surveillance were drafting a complaint in 2010 that
they planned to take to the Office of Special Counsel. A short time
later, before the complaint was filed, Dr. Smith and another complaining
scientist were let go and a third was suspended. </p>
<p>
In another case, the intercepted e-mails indicated that Paul T. Hardy,
another of the dissident employees, had reapplied for an F.D.A. job “and
is being considered for a position.” (He did not get it.) </p>
<p>
F.D.A. officials were eager to track future media stories too. When they
learned from Mr. Hardy’s e-mails that he was considering talking to
PBS’s “Frontline” for a documentary, they ordered a search for anything
else on the same topic. </p>
<p>
While the surveillance was intended to protect trade secrets for
companies like G.E., it may have done just the opposite. The data posted
publicly by the F.D.A. contractor — and taken down late Friday after
inquiries by The Times — includes hundreds of confidential documents on
the design of imaging devices and other detailed, proprietary
information. </p>
<p>
The posting of the documents was discovered inadvertently by one of the
researchers whose e-mails were monitored. The researcher did Google
searches for scientists involved in the case to check for negative
publicity that might hinder chances of finding work. Within a few
minutes, the researcher stumbled upon the database. </p>
<p>
“I couldn’t believe what I was seeing,” said the researcher, who did not
want to be identified because of pending job applications. “I thought:
‘Oh my God, everything is out there. It’s all about us.’ It was just
outrageous.” </p>
<div class="authorIdentification">
<p>Andy Lehren contributed reporting.</p> </div>
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