It’s hard to protect whistleblowers. Occasionally crackpots, sometimes contrarians, but always risking their livelihoods and reputations for the truth, whistleblowers clearly need special protections. For federal employees, those protections exist in the form of the Whistleblower Protection Act of 1989. The Act is intended to protect not just employees from retaliation, but their communications with Congress and investigators from the prying eyes of their federal employers.
Yet, scientists at the Food and Drug Administration (FDA) recently filed suit alleging that they experienced retaliation for attempting to blow the whistle on inappropriate practices in approving new medical devices. They also alleged that the FDA had been spying on them. That the FDA knew about the scientists’ attempts to blow the whistle seems pretty self-evident. The FDA actually asked the Inspector General’s Office at the Department of Health and Human Services to investigate the scientists for inappropriately disclosing information as part of their whistleblowing activities.
And now we are at the heart of the case. How did the FDA know what the whistleblowers were up to?
Why, spyware, of course. The FDA employed software that could secretly record all of the activity on the employees’ computers, even taking snapshots of what displayed on the screen. It sounds pretty sneaky, except that the FDA computers actually had a warning log-in screen that clearly stated that the FDA computers could be monitored at any time. Like other employers, the FDA has argued that it has a right – some would say a responsibility – to monitor the activities of its employees to ensure that employees are not engaged in wrongdoing. It’s hard to argue too strenuously with an employer wanting to ensure that employees are appropriately using employer-owned equipment.
Where is the balance? How can these two needs be met? Employees need to be able to blow the whistle without fear of spying and retaliation. How can that be accomplished while allowing employers to appropriately supervise their employers?