Invasion of Privacy? – Federal Government Secretly Monitored Personal Webmail

07 March 2012 Internet, IT & e-Discovery Blog Blog
Authors: Peter Vogel

A group of nine scientists and doctors recently sued the US government claiming that their personal Gmail accounts were under federal surveillance which led to harassment or dismissal for Food & Drug Administration (FDA) employees who were whistleblowers. The Washington Post reported that the FDA:

...secretly monitored the personal e-mail of a group of its own scientists and doctors after they warned Congress that the agency was approving medical devices that they believed posed unacceptable risks to patients.

However apparently the FDA told employees that they should not expect privacy: 

FDA computers post a warning, visible when users log on, that they should 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.

Notwithstanding the FDA warnings about no privacy, the FDA whistleblowers admitted that they accessed their Gmail accounts from government computers. Under the 2009 ruling from the US Supreme Court, employees using employer’s computers are not entitled to privacy under the Constitution (City of Ontario v. Quon). However the FDA whistleblowers claim that the FDA should not able to monitor emails not sent or received using government computers.

On March 5, 2012 Senator Charles Grassley (Committee on the Judiciary) and Representative Darrell Issa (Chair of the Committee on Oversight and Government Reform) sent a letter to the Office of Management and Budget demanding an explanation to Congress why the FDA “secretly monitored personal email accounts of ...the FDA nine.” Further, the letter states that:

...FDA may have intercepted passwords to the personal e-mail accounts of its employees for the purpose of logging in to search for archived messages to and from Congress and OSC [Office of Special Counsel – where whistleblower complaints are filed]. In the absence of a subpoena, such an activity would violate the Stored Communications Act.

This will be an interesting lawsuit to follow since it not only challenges the City of Ontario case about employee privacy, but also if the FDA violated the Stored Communications Act.

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