Stephen Kohn, attorney for the FDA whistleblowers and executive director of the National Whistleblowers Center.
The Food and Drug Administration has been found to have launched a massive surveillance campaign targeting its own scientists for writing letters to journalists, members of Congress and President Obama. The scientists were expressing their concern over the FDA’s approval of medical imaging devices for colonoscopies and mammograms that could endanger 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 and thumb drives and even monitoring individual messages line by line as they were being composed in real time. The agency also created an enemies list. We’re joined by the FDA whistleblowers’ attorney, Stephen Kohn, executive director of the National Whistleblowers Center. "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," Kohn says. "The agency [sought] to destroy the reputation of these whistleblowers forever." [includes rush transcript]
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: 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, quote, "Continued stonewalling and secrecy about the spying on these employees’ protected disclosures is unacceptable."
The FDA has denied any wrongdoing. In response to a Democracy Now! request for comment Monday, the agency said, quote, "FDA did not monitor the employees’ use of non-government-owned computers at any time. Neither members of Congress nor their staffs were the focus of monitoring. At no point in time did FDA attempt to impede or delay any communication between these individuals and Congress. Employees have appropriate routes to voice their concerns without disclosing confidential information to the public, and FDA has policies in place to ensure employees are aware of their rights and options," the FDA told us.
Well, to talk more about the implications of this case, we’re going to Washington, D.C., to speak with Stephen Kohn, the attorney for the FDA whistleblowers and executive director of the National Whistleblowers Center, who has brought suit against the government.
Stephen Kohn, welcome to Democracy Now! Can you first explain what happened, how you found out this extensive monitoring was taking place, and who exactly you represent?
STEPHEN KOHN: OK. Well, I’m 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, you’re talking about a lot of political pressure, a lot of financial pressure, that’s just totally outrageous in the medical and FDA context.
AMY GOODMAN: And the corporation that owned these devices?
STEPHEN KOHN: Major corporations. This particular device and similar devices, General Electric. Now, what these scientists at—well, I’ll 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 her—we’re keeping this person’s identity confidential—and discovered that FDA had uploaded on Google thousands and thousands of pages—now, 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.
AMY GOODMAN: So, explain what you found. How were these scientists monitored? Now, some of them were fired, right? They were pushed out.
STEPHEN KOHN: That’s correct. I mean, FDA’s 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 what’s 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. We’ve seen it in many cases where the agencies go to the public and say, "Hey, it’s a leak of confidential information. It’s legitimate." But what we’re 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 file—confidentially—safety allegations with an organization known as the Office of Special Counsel. By statute, these communications are protected. Employees are given anonymity and confidentiality. It’s 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 charges—lawfully—with 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 who’s concerned about his termination, to deflect their own wrongdoing. They also—
AMY GOODMAN: And his name was, Stephen Kohn?
STEPHEN KOHN: Dr. Robert Smith, who formerly ran radiology over at Yale University. He’s, without a doubt, an incredible medical doctor. He was an asset to the U.S. government. He had incredible skills. And they didn’t care about that; they wanted him out.
AMY GOODMAN: I want to turn to an example of the way the FDA intercepted the electronic correspondence of its employees. This image shows a photo of one of the whistleblowers’ dogs on their computer screen. Stephen Kohn, can you explain the significance of this? And for our radio listeners, you can go to our website and look at the scientist’s dog.
STEPHEN KOHN: Yeah. What they did was they put spyware into the computers. We’re 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 their—so they had the ability to get into their medical records, their financial records, their confidential Google-to-Google communications—all 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, that’s 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.
AMY GOODMAN: The New York Times identifies the spyware as sold by SpectorSoft of Vero Beach, Florida, costs as little as $99.95 for individual use, $2,875 to place the program on 25 computers, marketed mainly to employers to monitor their workers and to parents to keep tabs on their children’s computer activities. SpectorSoft’s website says, "Monitor everything they do. Catch them red-handed by receiving instant alerts when keywords or phrases are typed or are contained in an email, chat, instant message or web site." What about the enemies list, Stephen Kohn? Members of Congress on this enemies list. Who’s on it?
STEPHEN KOHN: Well, 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, it’s 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 email—the way people do emails with chains and, you know, sending one to one person and another, it’s very easy to get caught up, because you might think you’re confidential, and you send an email to someone else who thinks they’re 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 FDA’s spy network.
But because they had no controls, they clearly weren’t 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, we’ve only seen two of those lists. There’s probably numerous others as this campaign continued to mushroom. We’ve seen what I call one iceberg. It’s still the tip of it. There’s many, many more documents, and we have a Freedom of Information Act lawsuit. We’re trying to find them all.
AMY GOODMAN: Finally, Stephen Kohn, on this issue of spying within the agency, it goes back to when? 2010, as far as you know, or back further?
STEPHEN KOHN: Well, 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 Obama’s 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 it’s 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, so all of the—
AMY GOODMAN: Found by one of the scientists just looking for whether the reputations of scientists had been—he was just googling names of people he knew, and he found this massive database?
STEPHEN KOHN: Well, what actually—yeah, 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. It’s like, "Oh, my god! Look what’s out there about me." It’s all the private emails.
AMY GOODMAN: And the FDA says it was a contractor that was working for the FDA that posted these, what, 80,000 documents that show how an agency monitors, spies on, launches a massive surveillance campaign on its employees, and then took it down.
STEPHEN KOHN: Yeah. And we think that that—that 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 don’t have the documents." They’ve been fighting us for two years on the production of some of these materials. So I don’t think the movement of these thousands of pages from government possession to a private contractor—it was not accidental, and it was not done with a good intent.
AMY GOODMAN: Stephen Kohn, I want to thank you for being with us, attorney for the FDA whistleblowers and executive director of the National Whistleblowers Center. Of course, we will continue to follow this case.
This is Democracy Now!, democracynow.org, The War and Peace Report. When we come back, we’ll be joined by Nation editor-at-large Chris Hayes, now MSNBC host. His new book is called Twilight of the Elites: America After Meritocracy. Stay with us.
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