Stopping the (DOGE Data) Steal

The Lawsuit To Stop Musk's Heist

- by Kevin Necessary

“The liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That, in its essence, is fascism - ownership of government by an individual, by a group, or by any…controlling private power."

- FDR

“DOGE is the equivalent of Russia's "little green men," faceless and nameless people who started showing up all over Crimea in 2014, hiding in plain sight. as they eventually took over.

They have no legitimate authority to do what they're doing, and they're breaking laws and the Executive Order as they go.”

- Me

Retired Americans and Unions to the Rescue

Yesterday evening, several unions and the Alliance for Retired Americans sued the new Treasury Secretary for having illegally provided Elon Musk and DOGE personnel access to sensitive financial records and data of millions of Americans.

I am SO GLAD they stepped up.

To give subscribers a better sense of the law involved, and how problematic DOGE’s heist of Treasury data is, let me share some highlights from the suit.

The Scope of the Data Grab:

• “Millions of individuals engage in financial transactions with the federal government. The government collects trillions of dollars from individuals who pay their income taxes, obtain government services, and pay back loans and other debts that they owe.”

• “People also receive money from the federal government. Social security retirement and disability payments, federal tax refunds, veterans’ benefits, and salaries and wages for federal workers are some examples of payment transactions that occur between ordinary individuals and federal agencies.”

• To effectuate these transactions and payments, the “Department of the Treasury….collects and maintains sensitive personal and financial information about the individuals who are the counterparties to the transaction. Names, Social Security numbers, birth dates, birth places, home addresses and telephone numbers, email addresses, and bank account information about millions of individuals are maintained within the Department’s records….”

• The complaint makes the important point that these “[m]illions of people cannot avoid engaging in financial transactions with the federal government and, therefore, cannot avoid having their sensitive personal and financial information maintained in government records….People who must share information with the federal government should not be forced to share information with Elon Musk or his “DOGE.””

The Law:

• “Federal laws protect sensitive personal and financial information from improper disclosure and misuse, including by barring disclosure to individuals who lack a lawful and legitimate need for it.” Specifically:

  • “To engage in financial transactions with individuals, Defendants must collect and maintain personal and financial information about those individuals. As federal agencies, the Department and the Bureau are subject to the requirements of the Privacy Act, 5 U.S.C. § 552a, with respect to records that it maintains on individuals.”

  • “Personal information contained in these records include names; taxpayer identifying numbers (i.e., Social Security numbers or employer identification numbers); contact information, such as work and home addresses, email addresses, and work, home, and cellular telephone numbers; the name and contact information of employers; dates of birth; driver’s license numbers; bank account information; credit and debit card numbers; individual payment information; and user names and passwords. Id. at 11796–97. SORN .013 states that “[o]nly employees whose official duties require access are allowed to view, administer, and control these records.” Id. at 11798.”

  • “The Privacy Act prohibits the disclosure of a record about an individual to any person or another agency unless “the individual to whom the record pertains” consents or a statutory exception applies. 5 U.S.C. § 552a(b).” An exception being that disclosure is permitted to “those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties.”

  • “Because Defendants process tax-related transactions, they are also subject to the confidentiality requirements of the Internal Revenue Code, 26 U.S.C. § 6103. Section 6103 provides that “[r]eturns and return information shall be confidential,” and cannot be disclosed by a federal officer and employee unless authorized by statute….The officers and employees of the Treasury Department may access return and return information if their “official duties require such inspection or disclosure for tax administration purposes.” Id. § 6103(h)(1).

  • “The Privacy Act [therefore] prohibits Defendants from disclosing records on individuals to Mr. Musk, other individuals associated with DOGE, or any other person without the individual’s consent except in specified circumstances.”

  • “The Internal Revenue Code, 26 U.S.C. § 6013, prohibits Defendants from disclosing return and return information about taxpayers to Mr. Musk, other individuals associated with DOGE, or any other person except for officers or employees of the Treasury Department whose official duties require such inspection or disclosure for tax administration purposes.”

What Treasury and DOGE did:

• “[O]n Friday evening, January 31, defendant Bessent gave representatives of DOGE full access to the federal payment system. Senator Ron Wyden, Ranking Member of the Senate Committee on Finance, has reported that DOGE’s access to Treasury’s payment system is complete. He has stated that DOGE has “*full* access to this system. Social Security and Medicare benefits, grants, payments to government contractors.... All of it.”

• “Defendants have not released the full list of DOGE-affiliated individuals who have been provided access to the Treasury’s payment systems, or whether those individuals are employees of the Bureau, the Department, another agency, or a private enterprise….And Secretary Bessent has reportedly “signed off on a plan to give access to the payment system to a team led by” Mr. Krause, who is identified in the article as “a liaison to Musk’s DOGE group that operates out of” the USDS. Defendants have not publicly disclosed the members of Mr. Krause’s team or provided the details of the “plan” for access that Secretary Bessent reportedly signed off on. Although an anonymous source assured that “no one outside Treasury would have access” to the payment system, the source apparently did not indicate whether information contained in the payment system would be disseminated outside of the Bureau.”

• “Mr. Musk has suggested that the DOGE team has the authority to control disbursements at the Bureau.”

• “Defendants have the statutory responsibility to protect the sensitive personal and financial information that they collect and maintain about individuals from unnecessary and unlawful disclosure to third parties. Defendants have acted inconsistently with that responsibility by granting individuals associated with DOGE access to the extensive records that the Bureau maintains on every individual with whom it engages in financial transactions. Moreover, Defendants have taken this action without obtaining or even asking for the consent of affected individuals.”

• “Defendants have implemented a continuous and ongoing system for disclosing records on Plaintiffs’ members without obtaining consent from each member.Defendants have implemented a system for disclosing records on Plaintiffs’ members to individuals who are not officers or employees of the Bureau who have a need for the records in the performance of their duties.”

• “Defendants have implemented a system for disclosing records on Plaintiffs’ members to individuals for purposes other than the routine uses specified in the Bureau’s SORNs.”

• “Defendants have implemented a system for disclosing tax returns and return information of Plaintiffs’ members to individuals who are not officers and employees involved in tax administration as part of their official duties.”

• “Defendants failed to engage in reasoned decisionmaking when they implemented a system under which Elon Musk or other individuals associated with DOGE could access the Bureau’s records for purposes other than those authorized by the Privacy Act, the Bureau’s SORNs, and the Internal Revenue Code. In particular, Defendants failed to consider their legal obligations under federal law, the harm that their actions would cause to the objectives that those statutes sought to achieve, or the harm caused to Plaintiffs’ members or the general public.”

• “Defendants’ ongoing, systematic, and continuous action in permitting Elon Musk and/or other individuals associated with DOGE to access the Bureau’s records and the personal and financial information contained therein violates that duty and is in excess of their statutory authority. Id. § 706(2)(C).”

Let’s hope this leads to a quick injunction on this egregious and ongoing piracy—which is essentially an intentional and cooperative breach of private data.

Other DOGE Problems

There are other suits taking on the make-up and activity of DOGE more broadly. Here’s one by CREW.

In the meantime, I will keep pointing out that in addition to operating way beyond appropriate executive power, and skirting required transparency, DOGE is also operating beyond the scope of the very Executive Order that created it:

The Order is very clear:

"1) Section 1. Purpose. This Executive Order establishes the Department of Government Efficiency to implement the President’s DOGE Agenda, by modernizing Federal technology and software to maximize governmental efficiency and productivity."

Most of the work being done so far goes absurdly beyond this scope of "modernizing technology and software

4) (b) "Agency Heads shall take all necessary steps, in coordination with the USDS Administrator and to the maximum extent consistent with law, to ensure USDS has full and prompt access to all unclassified agency records, software systems, and IT systems."

"Unclassified." If reports are accurate, this too has already been violated. A court should stop this overreach dead in its tracks.

Day 64–February 3, 2025

DOGE, Musk and the Trump Administration waged an all-out assault on the US Agency for International Development. In one fell swoop, the new Administration: cut off employee access to US AID headquarters; suspended dozens of top staff; attacked the agency via coordinated messaging, accusing it of being corrupt/criminal, Marxist, and a slush fund; shut down its website; shut down much of US AID’s work (including tracking avian flu in foreign countries) by freezing foreign assistance; echoed Russian talking points and rhetoric about US AID’s mission and operation; removed top US AID officials for refusing to turn over classified materials without appropriate clearances; announced that Secretary of State Rubio was the acting US AID director (even though it’s a separate agency), and so on.

No surprise, Russia and its leaders celebrated the attack on the agency:

Both because DOGE itself is so legally problematic, and because US AID is a creation of Congress, funded by Congress, these actions are deeply problematic as a matter of law.

Beyond the work of US AID itself, this is essentially a targeted test of the rule of law. If DOGE and the executive can take out an entire agency without Congress weighing in, they can essentially do anything.

So far, Republicans in Congress are signaling they have no issues simply giving up their power here.

And now…

Kevin’s Commentary….

Welcome back, friends, to another behind the scenes look at my cartooning process. Find a ripple of hope and ride it along as we check out last week's rough sketches.

Donald Trump issued a pardon to over 1,500 people charged in connection to the January 6, 2021 insurrection. The leader of the so-called party of law and order thumbed his spray tanned nose at the rule of law. Now, those who tried to overthrow our government, kill elected leaders such as the vice president and the Speaker of the House, and who injured and killed Capitol Police officers walk free.

The rule of law as we knew it is dead. In its wake is only the rule of Donald. His Orangeness will do whatever the hell he wants to stay in power, including issuing pardons to a mob of dangerous insurrectionists….