DOGE's Threats to the Fourth Amendment: Privacy at Risk

-- By JuliaSmith - 26 Mar 2025

The Creation of DOGE and Ensuing Threats to Privacy

On the first day of his second term, Donald Trump signed an executive order establishing the Department of Government Efficiency (DOGE). The order stated that the goal of the new department was to modernize federal technology and software “to maximize governmental efficiency and productivity.”

In its research into governmental spending, DOGE employees have accessed highly confidential information through federal agencies like the Department of Labor and Department of the Treasury, including federal employee records, employment data at large, government payment information, documentation regarding disaster victims, and student loan recipient data. This data, which is allegedly being used to facilitate a large-scale investigation of the United States’ internal spending, consists of a large amount of personal and confidential information historically known to have been private to individuals. This access implicates personal data like social security numbers and tax information from almost all federal employees and millions of Americans.

Despite its name, DOGE is not an official government department. Governmental departments are constitutionally created by Congress, which holds the power to establish and fund them. As DOGE was established by an executive order, it lacks the Congressional approval required to make the key spending decisions it purports to. The seizure of this caliber of confidential information by an organization that is not an actual federal government department not only violates the longstanding Privacy Act of 1974, but also the Fourth Amendment of the Constitution. This essay will analyze how Donald Trump’s thinly veiled attempt at seizing the personal information of millions of Americans violates the Constitutional guarantees of the Fourth Amendment.

DOGE and the Fourth Amendment

The Guarantees of the Fourth Amendment

The Fourth Amendment has long been a pillar of the United States privacy law. The amendment protects individuals from unreasonable searches and seizures by the government, guaranteeing a base level of privacy in terms of an individual’s person and possessions.

Recently, courts have begun to address the meaning of the Fourth Amendment in light of the digital age. In 2018, the Supreme Court considered the application of the Fourth Amendment as it relates to location data generated by cell towers. The Court held that the government’s warrantless acquisition of such data violated the Fourth Amendment. In the majority opinion, Chief Justice Roberts acknowledged that the conception of the Amendment has expanded over time to protect certain expectations of privacy. The Court further noted several factors that can help in determining whether or not the government has violated the Fourth Amendment, including (a) a person’s expectation of privacy in his physical location and movements, (b) whether the information was voluntarily turned over to third parties and (c) whether the government has access to records holding the privacies of life, thus allowing excessive surveillance capabilities.

DOGE’s Fourth Amendment Violations

A series of recent lawsuits have illuminated several privacy violations involved in DOGE’s data collection. Early in the new administration, Trump, Musk, and others repeatedly threatened to fire government employees whom they view as disloyal. As a result, the disclosure of personal information to DOGE has put individuals’ job security at risk.

On top of job security, DOGE’s data collection poses a critical threat to Americans’ financial security. The use of new and untested technology to disseminate data risks the leak of private personal information through hacking by criminals or foreign governments. Given the sensitivity of this data, if obtained by a bad actor, Americans could be subjected to significant fraud and theft. Moreover, plaintiffs, policy-makers, and security experts alike are concerned that foreign cyber experts (from countries like China, Russia, and Iran) could seek to exploit the system and launch U.S.-based cyber attacks.

Further, as DOGE is not an official federal government agency, the DOGE agents handling this highly sensitive and confidential information have not received the normal U.S. government security clearance. Even more worryingly, at least one of those agents has been fired from prior employment due to the disclosure of his employer’s secrets. This has led many Americans to fear that some of their most sensitive data will be mishandled by individuals not bound by traditional government clearances or rules.

How Fourth Amendment Precedent Can Be Used to Combat DOGE’s Data Collection

Applying the Carpenter opinion’s Fourth Amendment analysis to this case demonstrates that DOGE’s data collection constitutes an unconstitutional breach of privacy. In Carpenter, the Court emphasized the importance of physical location and movement in assessing breaches of privacy. For example, past cases held that a person driving on public roads has no reasonable expectation of privacy. However, in the case at hand, Americans absolutely have a reasonable expectation that their classified employment, financial, and social documentation should be kept in the utmost confidentiality. The fact that this information is being handled by individuals who have not undergone governmental security clearance should alone indicate a breach of the reasonable expectation of privacy, and thus equate a violation of the Fourth Amendment.

The Court also emphasized the importance of assessing whether the information was handed over voluntarily to the third party. In the case of DOGE, individuals are not willingly allowing the department to access their personal information. While there is, of course, some assumption that the government will have access to certain private information, DOGE’s access strays from this assumption in a few key areas, including the fact that DOGE is not a federal government agency and its employees are not held to the same security standards as government employees typically are.

Finally, DOGE also very clearly has access to documents central to the privacies of life, which the Supreme Court has held heavily weighs for a Fourth Amendment violation. As discussed, the information being collected by DOGE is extremely private. Individuals’ social security numbers, tax data, and employment records are some of the most intrusive data for anyone to access. This information, if in the wrong hands, could result in a substantial array of fraud, risking the finances, employment, and even identities of countless Americans.