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| | 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. |
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< | 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. |
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> | 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 is in clear violation of the longstanding Privacy Act of 1974. This essay will analyze how Donald Trump’s thinly veiled attempt at seizing the personal information of millions of Americans violates the guarantees of the Privacy Act. |
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< | DOGE and the Fourth Amendment |
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> | DOGE and the Privacy Act |
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< | The Guarantees of the Fourth Amendment |
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> | The Guarantees of the Privacy Act |
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< | 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. |
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> | The Privacy Act of 1974 has long been a pillar of the United States privacy law. The Act was enacted to protect individuals against the misuse of personal information by the federal government. |
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< | 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. |
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> | The Privacy Act regulates how federal agencies use, collect, and disseminate personal data to provide transparency and safeguards for information kept in government systems. The Act includes guarantees on (a) data minimization and accuracy, (b) access and amendment rights, (c) limitations on disclosure and (d) use only for purposes in which the information was collected. This Act is particularly essential in administrative circumstances, in which governmental agencies are handling large volumes of highly confidential data. Unlike the Fourth Amendment, which is limited in application outside criminal investigations, the Privacy Act is specifically intended to control the use of personal data by the executive branch, even when wrongdoing is not suspected. |
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< | DOGE’s Fourth Amendment Violations |
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> | DOGE’s Privacy Act 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. |
| | 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. |
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< | How Fourth Amendment Precedent Can Be Used to Combat DOGE’s Data Collection |
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> | How the Privacy Act Can Be Used to Combat DOGE’s Data Collection |
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< | 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. |
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> | Several of the guarantees of the Privacy Act can be used to directly combat the data collection perpetrated by DOGE. First, the fact that DOGE was enacted by executive order, and not authorized by Congress, indicates a clear lack of statutory authority to collect or access sensitive personal data. This access alone violates the Privacy Act's prohibition on unauthorized disclosure and use of data. |
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< | 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. |
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> | Individuals have also not been given the opportunity to consent to the use of their data for DOGE's financial investigation. Federal employees, individuals with student loans, and disaster victims should reasonably expect that their data stay within the bounds of the agency that collected it. Instead, it is being aggregated by a vaguely defined entity created outside of the usual legislative process. |
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< | 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. |
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> | DOGE employees also lack the standard federal security clearances required of governmental employees, and have not been vetted under government protocols for handling confidential and sensitive information. This raises additional concerns about data integrity, unauthorized access, and a lack of compliance with the Privacy Act's record- keeping requirements.
There are several practical methods in which the Privacy Act can be a tool to fight DOGE's data collection. First, and perhaps most importantly, affected individuals can use the Act to litigate against DOGE or its directors. These individuals can assert that their confidential information has been accessed without consent, in direct violation of the Privacy Act. In rectifying this injustice, courts can award damages and issue injunctive relief to prevent further breaches of individual privacy.
The Privacy Act can also be used to facilitate Congressional oversight. Because Congress did not take part in establishing DOGE, it can hold hearings and access records to determine whether DOGE officials have circumvented legislative authority. Congress can also clarify that DOGE is an agency that is subject to the Privacy Act and that it cannot function outside the bounds of the Act itself.
Finally, the Offices of Inspector General (OIGs) in agencies like the Department of Treasury and the Department of Labor can implement internal audits to determine whether DOGE's use of agency data violated Privacy Act provisions like the prohibition on unauthorized disclosure, the requirement that data be used only for its original purpose, and the obligation to ensure proper safeguarding and accuracy of personal records. |
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A good factual summary of what we know about the situation. |