Best of Stanford Legal: Suing DOGE

0:00One way this plays out is sort of confrontation between the court, right, which has made very clear that many of the things that Musk is doing are flatly illegal. Right. When it gets those challenges, what does it do? Right. Does it simply strike them down? And then what happens if, as I think is a very real risk, you know, probably for the first time in my lifetime, that the president just ignores the court and says, no, we're just we're going to do what we want anyway.

0:34Pamela Karlan:This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way, you'll have access to all our new episodes as soon as they're available. Well, the Trump administration has been firing on all cylinders and then some. And our guest today is Mark Lemley, my colleague here at the law school. He's the William H. Newcomb Professor of Law, and he's director of the Stanford Program in Law, Science, and Technology. He also is a principal in Lex Lumina, which is a law firm that does a wide variety of litigation, a lot of it in the sphere of intellectual property, where Mark is the leading scholar in the country.

1:24Pamela Karlan:And intellectual property, a lot of it is about information. And today we're going to be talking with Mark about a different aspect of information, a lawsuit that he and his colleagues have filed. That's one of the many lawsuits involving the Trump administration and its attempts really to remake what we understand the government to be. The caption of the lawsuit is a long caption, but it's really the American Federation of Government Employees and several other unions, along with a group of individual government employees suing the United States Office of Personnel Management, which has been around for quite a while, and then something called the U.S.

2:09Pamela Karlan:Doge Service. And Mark, in some ways, you might be the right person to talk about what the Doge service is, because, of course, when I see the word Doge, I think about the Venetian Republic, a republic that lasted for 500 years and then collapsed. And I think this is ironic, naming your service after the leader of a collapsed republic. But of course, Doge means something else to folks like you. So how did we get the U.S. Doge service? Yeah, well, first thing to know is that nobody really knows the answer to that question, nor do we know exactly what it is. But Elon Musk has been obsessed with various things, one of which is Dogecoin, which is a form of cryptocurrency that's been around for a little while.

2:54And so I think he decided as part of his penchant for puns he thinks are clever, that he should run the Department of Governmental Efficiency. which appears to be neither a department nor about governmental efficiency, but which he could nicely abbreviate to Doge. I will note that at least one person I met who had read it but was not familiar with either the Venetian Republic or Dogecoin asked about Elon Musk running the doggy department. And I do think we might want to refer to it in that phrasing from now on.

3:29Pamela Karlan:Yeah, it's kind of like wall E, right? It would be dog E. Exactly. Yeah, it's kind of a mystery. And of course, what they did is they did the equivalent of what in the corporate world is sometimes referred to as a SPAC, which is they took an existing USDS, which was the digital service, and they renamed it the Doge. And the government is now in, not in your lawsuit, but in a different lawsuit, taking the position that Elon Musk doesn't run Doge, because if he did run Doge, that would be a problem for him. On the other hand, they won't tell us who is running it. But while these people are not running or running the government, what did they do that led to your lawsuit?

4:09Right. Yeah. So and I think the fact that the sort of like Schrodinger's cat nature of this entity, which is a government entity when we want it to be and not otherwise, is actually going to feature in this lawsuit. But what happened that precipitated our lawsuit was that a number of people in their late teens and early 20s who purportedly worked for Doge, who used to work for Elon Musk's companies might or might not now work for the government, came into the Office of Personnel Management and demanded a route administrative access to all of the computer records there. That means access to the social security numbers, the age, gender identity, and health and a variety of other information kept in personnel records for all federal government employees and all former federal government employees.

5:00Pamela Karlan:And what conceivable reason is there for getting this information? So I think it's a good question, right? And the government hasn't articulated one. I think things they seem to have done with this information, one was use it to send an email to everybody in the government offering them a buyout, which is the subject of a separate lawsuit and might or might not be legal. So they got access to sort of everybody's email in one place. But the other thing that we've seen fall out from this so far, we've seen a number of firings in various departments that are sort of across the board, right, that are not here is a decision by a local administrator to terminate somebody in the government.

5:46For instance, the government fired everyone whose status in the government was probationary. We don't know why they did that, but it's possible that they thought probationary meant, oh, if you're on probation, maybe you're a low performer and we should fire you. No, it just means you're in your first two years of government service. Right. It means you're each other. So we're getting rid of that. Maybe they wanted to do that. Here's an easy way to identify and get rid of all of the Biden administration hires. But it turns out that, among other things, probationary employees also include those who've been around for a long time, done a great job and have been promoted to a new position within a new department and are in probationary status on that department.

6:29And so we ended up firing a bunch of people who have very critical jobs within the government. But I think they got that information from OPM. Right. So these people who purportedly work for Doge came in and got computer access to all of the computer systems and all of the data.

6:47Pamela Karlan:And once they have access to this data, I mean, since we don't really know who Doge is or are, I don't know whether we use the singular or the plural form, but we don't really know who they are. and it's not clear what else they might use this data for. I mean, the idea that Elon Musk has access to all of this data and is also running a bunch of companies that depend on knowing a lot about people. I mean, it really does sort of move us towards a kind of either 1984 or panopticon kind of society. Yeah, no, I think that's right. And so one very significant worry is what does Elon Musk and his employees, presumably his employees, again, the government now takes the position he doesn't actually have any employees at the government, what do they do with this information deliberately, right?

7:40And that could be things like illegally firing people. One of the things you can learn from this is transgender status, right? So if you want to target people on the basis of protected category, you could do that. And some of the people who are acquiring this information. One of them is 19 years old and goes by the online name Big Balls. He was fired from a cybersecurity company, apparently, for mishandling information. So one set of worries is, what does Elon Musk and what do these people decide to do with the information? But the other set of worries is, once you've taken information out of a secure environment, it makes it much easier for anybody else, like the Chinese government or the Russian government to hack it and get access to this information.

8:25And the Doge folks appear to be engaged in essentially no common cybersecurity practice. The Doge website itself, they used open programs so that anybody could go and modify and write to the Doge website. You're kidding. Nope. Nope. I wish I was. They emailed a list of CIA employees hired in the last two years over unencrypted email to the White House, where the identity of these people is itself something that could get them killed. So I think where Bruce Schneier, who's a cybersecurity expert, says this is the worst hack of the United States government in history, right? It's worse than anything the Chinese have done because we've now made this information insecure, and it's going to be hard to get it back.

9:09Yeah.

9:10Pamela Karlan:And so your lawsuit uses a federal statute called the Privacy Act. Can you tell us a little bit about kind of what the theory of the lawsuit is and what you're looking for. Yeah. So the Privacy Act was passed in 1974, and it governs the behavior of agencies who have information about individuals. And one of the things it says, the kind of core provision is just because the government has information about you in one agency doesn't mean you can share it with anybody else in the government. So the Privacy Act says the agency can use this information for its own purposes. It can't share it outside the agency unless it meets one of a specified set of exceptions.

9:52There's a national security exception. There's anonymized data for sort of census and polling information. There are various exceptions, none of which seem to apply here. And so our argument in the lawsuit is straightforward, which is OPM has a right to access this data, DOGE, whatever it is, is not part of OPM, and it doesn't have a right to access this data under the Privacy Act unless it meets one of those exceptions. And there's no exception that I think can plausibly apply here.

10:22Pamela Karlan:Yeah, I mean, there would be very few exceptions that would allow you to get everybody's data, right? I mean, you could imagine a fair number of the exceptions under the Privacy Act where, you know, the State Department wants particular data about, you know, government employees who are in particular countries or the like. But this does seem to be, you know, all the data of any kind about anyone who's ever worked for the government. Yep. Which I assume kind of includes us because we were both law clerks. So that may, maybe it seems like the judiciary is in a different. Although, you know, there was one of these executive orders right at the beginning.

11:00I think it was the one that sent the fork in the path, which sent a bunch of stuff to people in the judicial branch.

11:07Pamela Karlan:And then the administrative office of U.S. courts sent around a note saying, you know, pay no attention to these people. Right. Because the courts are, in fact, I think in a different. But but you're right. It does suggest they may have that information and access to it. Yeah. And the kinds of exceptions that we're talking about, there's a national security exception. There's an exception for the Bureau of the Census for purposes of carrying out the census. There's statistical reporting that's not identifiable information. Right. His national archives can have certain information of historical significance.

11:37None of that is here. And none of it, as you suggested, could plausibly require access to every for current and former government employee, which is something like 20 million people.

11:47Pamela Karlan:Yeah. And as you say in the complaint, it's things like, you know, who's your health insurance provider? What kinds of claims have you made? You know, who who else is a family member and the like? I mean, all of that stuff, all of that stuff's in there. Right. So two things that are notable about the kind of sort of Privacy Act. Right. And one is, as mentioned, right, it is not a defense that you sort of wanted to use this for a lawful purpose. Right. If you disclose the information outside the agency and not for one of these specified purposes, that's a violation of the Privacy Act. So in some sense, for our lawsuit, it doesn't matter what, if anything, they do with the information.

12:25We think we're kind of concerned about what they're going to do with that information and what they've already done with it. But we don't have to prove that they have abused this information, that it's caused a hack or anything else in order for there to be a Privacy Act violation. Yeah.

12:38Pamela Karlan:And one of the things that's different about this lawsuit and the Privacy Act and a lot of the other lawsuits that are going on right now, which are lawsuits saying, you know, rehire this person that you fired or start letting the money flow again in disbursements like is the Privacy Act actually has damages provision in it. Yes. So, right. Right. And that's the second sort of interesting thing. Right. So if you it has a damages provision and if you willfully violate it, and I think it's pretty hard to argue they didn't deliberately get access to this information. the statute says there is a minimum statutory damages of$1 ,000 per person.

13:15Now, the Supreme Court, in an opinion by Justice Alito some years back in FAA v. Cooper, decided to abandon any plain meaning of the statute and graft on a new requirement that in order to be eligible for the$1 ,000 minimum statutory damage, you must have suffered some sort of financial injury. So our lawsuit right now is a lawsuit on behalf of the unions and some individuals seeking injunctive relief to stop the disclosure of the information and to sort of get it back to require the people who wrongfully have access to information to delete it. But coming is a lawsuit, a class lawsuit on behalf of current and former federal government employees for injuries they may have suffered.

14:03And so if you are a current or federal former federal government employee and you had to get credit monitoring or some sort of watch notice for your Social Security, if you were fired as a result of access to this information, all of those people have a damages action. And even if you paid only a small amount of money, I think you have a damages action with a minimum of a thousand dollars. Yeah.

14:24Pamela Karlan:So let me just ask you about one of the things you said there, because it's kind of fascinating, which is if you were fired as a result of this stuff being turned over, would you have a damages claim with the thousand dollars, even if they were otherwise entitled to fire you because the disclosure of this information played a role? So I think that's an interesting question. Right. And I don't know that we know the answer to that question yet. But so what the what the court said in FAA versus Cooper is you must have suffered some monetary injury because of the Privacy Act violation. So I think you could argue in a causation sense, right, if you were going to be fired on the same day anyway, you haven't suffered a monetary injury.

15:08Pamela Karlan:But presumably they couldn't have fired this kind of wholesale way on, you know, February 5th. It might have taken them until May or June or July to figure this out otherwise. Exactly. And so I think you've been injured if you were fired right out of the bat, even if the government could have fired you ultimately had it followed proper processes. At a minimum, you've suffered the injury of losing sort of three months salary or whatever you would have suffered. Now, those may be more than a thousand dollars, right? Yeah, well, it's certainly going to be more than more than more than a thousand dollars.

15:45Pamela Karlan:And, you know, I assume there are going to be similar lawsuits to this filed with regard to Doge getting access to everybody's tax records, which apparently led to the resignation of the top career Treasury employee who was in charge of the IRS's databases because he was unwilling to unwilling to hand this over to big balls. and whoever else is working with him. Yeah, and the same thing happened over the weekend with the head of Social Security Administration who resigned rather than disclosed this. Right, and one thing that I think it is important to recognize is, right, we think this lawsuit is important, right, especially if you are a current or former federal government employee, but it is one piece of a sort of mosaic that is challenging the sort of rampant pillaging of private government databases, not only databases about federal employees, but databases about every citizen in the United States.

16:42And so, yes, I think we will see litigation about the social security piece, about the IRS piece for sure. And I think they've got the same problem there, right? Big balls doesn't work for the IRS or for the social security administration. And even if they delegated somebody as an employee to one of those agencies to get access to the information, anything they do to share that information beyond the agency is going to violate the Privacy Act.

17:13Pamela Karlan:One of the things I wanted to do is bring in a piece of your work that wasn't in your normal field of expertise, which is intellectual property, where you are the most cited legal scholar in the country and also the most influential. And those two things do not always go together, but they do with you. And that's a piece you wrote in the Harvard Law forum that was called the Imperial Court. You wrote this in 2022, and it turns out to be even more true in some ways today. If you could say a little bit about that piece. And then what struck me when I was preparing to talk to you today is what we're now seeing is moves on behalf of the executive branch that look very parallel to the moves you talked about the court making as the imperial court.

17:58So take it away. I wrote this paper, the imperial supreme court in 2022, because what I'd seen were a variety of moves by the court that didn't seem to have any overarching ideological or methodological reason to them, except that the court got to do what the court wanted. And so rather than we're taking power away from the federal government and giving it to the states, or we're taking more power away from the government and giving it to the people, or we're taking power away from the executive branch and giving it to Congress, the court would move in any direction it wanted to, as long as it got the result that it wanted.

18:36And it ended up, I think, irrigating a lot of power to itself. And that struck me as a problem. Yeah.

18:44Pamela Karlan:And one of the things that has happened since then that you kind of perfectly predicted is the demise of the so-called Chevron Doctrine and the court announcing that it and it alone was capable of interpreting federal statutes in a kind of definitive way. Yeah, and I think that's going to be a very interesting thing to play out in the Trump administration, right? Because while I think we have seen the rise of the imperial Supreme Court, we are now seeing the rise of the imperial presidency. And just in the last 72 hours, The Elon Musk and his co-president Donald Trump have issued orders saying essentially only we can determine what the law is.

19:30Yeah, I noticed that. And issuing orders saying there will be no more independent federal agencies. So both of those things are clear efforts to try to consolidate power. and that may bump up against the court's effort to sort of consolidate power when it comes to lawmaking. It's a little ironic to me because I quite lamented the fact that the Supreme Court is sort of breaking the system of checks and balances, but the imperial nature of the Supreme Court may be the sort of last hope we have left to defend ourselves against the imperial presidency. We'll see what happens. I think recent history is not encouraging.

20:09They seem perfectly happy to give Donald Trump immunity from prosecution, for instance, notwithstanding the sort of history or the way the laws are written. And it may be that blowing up the Chevron Doctrine and saying we are the final arbiter is going to mean in practice only that we blow up liberal interpretations of agency rules and not conservative interpretations. But I think we're going to see a real test of of whether the Supreme Court will try to hold on to the power it has irrigated to itself, right, when it is asked to rule on a number of illegal actions by the Trump administration that's trying to consolidate its own power.

20:50Pamela Karlan:Yeah. And one place where, you know, we've been talking about the president and the Supreme Court, and we haven't mentioned once in this broadcast, really Congress, except for saying there's a privacy act. But one of the things, obviously, that the president's doing on top of everything else is taking funds that Congress has appropriated and saying, not going to spend these, I'm not sending this grant out and the like. And many years ago, the Supreme Court upheld a restriction on the president's impoundment power and the train against the United States case. But I think there's going to, you know, the new director of the Office of Management and Budget announced he doesn't think the Impoundment Control Act is constitutional and he thinks Trump doesn't think so either, which then raises this question, when these cases get to the Supreme Court, we're not hearing anything out of Congress, which seems utterly supine at this moment.

21:40Pamela Karlan:But the people who were supposed to be getting these grants, we're going to be hearing a lot from them. Yeah, no, I think that's right. And so I think one way this plays out is sort of confrontation between the court, right, which has made very clear that many of the things that Musk is doing are flatly illegal. Right. When it gets those challenges, what does it do? Right. Does it simply strike them down? And then what happens if, as I think is a very real risk that, you know, probably for the first time in my lifetime that the president just ignores the court and says, no, we're just we're going to do what we want anyway.

22:16And I think we will see that with the impoundment of funds. I also think we're going to see it with the independent agencies. agencies. Right. So these were agencies that were imbued by law with independence. Right. So you are you are telling Congress we we by executive order can undo the act of Congress. The court will have to decide. Right. I guess whether it was ever constitutional to pass those agencies. But it's even for an activist Supreme Court, it is a pretty broad lift to say a dozen agencies that have been around for 100 years or so all turn out to have been unconstitutional all along and we just didn't notice, notwithstanding the hundred or so cases we have adjudicated involving those agencies.

22:59So I think we're headed for that sort of a confrontation. And then I do want to emphasize something you said, which is the thing you might expect if Congress was being stripped of all power, the power over the budget, the power to actually determine agencies' structure and status, that somebody in Congress would speak up and say, hey, that's not okay. What we have seen is a rather remarkable willingness by Republicans in Congress to do whatever Trump wants, even people who in the past we might have said were moderate Republicans. I think one of the things we've seen is that the era of the moderate Republican in Congress is just over.

23:45They don't exist.