DOGE's data access Victory for DOGE as appeals court reinstates access to personal data Divided court sides with Trump admin in case over alleged privacy law violations. Jon Brodkin – Apr 8, 2025 2:39 pm | 22 A protest against President Donald Trump and Elon Musk in New York on February 19, 2025. Credit: Getty Images | Pacific Press A protest against President Donald Trump and Elon Musk in New York on February 19, 2025. Credit: Getty Images | Pacific Press Story text Size Small Standard Large Width * Standard Wide Links Standard Orange * Subscribers only   Learn more A US appeals court ruled yesterday that DOGE can access personal data held by the US Department of Education and Office of Personnel Management (OPM), overturning an order issued by a lower-court judge. The US government has "met its burden of a strong showing that it is likely to succeed on the merits of their appeal," said yesterday's ruling by the US Court of Appeals for the 4th Circuit. In a 2-1 decision, a panel of judges granted the Trump administration's motion to stay the lower-court ruling pending appeal. "The Supreme Court has told us that, unlike a private party, the government suffers an irreparable harm when it cannot carry out the orders of its elected representatives... Judicial management of agency operations offends the Executive Branch's exclusive authority to enforce federal law," wrote Court of Appeals Judge Steven Agee, a George W. Bush appointee. Agee was joined by Judge Julius Richardson, a Trump appointee, in voting to grant the motion to stay pending appeal. Judge Robert King, a Clinton appointee, voted to deny the motion. Judge “strongly” dissents In a separate 8-7 vote, the full court denied King's request for an en banc hearing. King's dissent said: Given the exceptional importance of this matter, I sought initial en banc consideration of the government's motion for a stay pending appeal of the district court's award of preliminary injunctive relief—an injunction that bars the defendant federal agencies and officials from disclosing to affiliates of the President's new Department of Government Efficiency, or "DOGE," highly sensitive personal information belonging to millions of Americans. Regrettably, my request for initial hearing en banc has been denied on an 8-7 vote, and the panel majority has granted the government's motion for a stay pending appeal on a 2-1 vote. I strongly dissent from both decisions. At stake is some of the most sensitive personal information imaginable—including Social Security numbers, income and assets, federal tax records, disciplinary and other personnel actions, physical and mental health histories, driver's license information, bank account numbers, and demographic and family details. This information was entrusted to the government, which for many decades had a record of largely adhering to the Privacy Act of 1974 and keeping the information safe. And then suddenly, the defendants began disclosing the information to DOGE affiliates without substantiating that they have any need to access such highly sensitive materials. Yesterday's decision overturned a ruling by US District Judge Deborah Boardman in the District of Maryland. Plaintiffs include the American Federation of Teachers; the International Association of Machinists and Aerospace Workers; the National Active and Retired Federal Employees Association; the National Federation of Federal Employees; and the International Federation of Professional & Technical Engineers. There are also six individual plaintiffs who are military veterans. Data access not an injury, panel finds Boardman ruled in February that "plaintiffs have shown that Education and OPM likely violated the Privacy Act by disclosing their personal information to DOGE affiliates without their consent." She approved a temporary restraining order, and subsequently issued a preliminary injunction. "This continuing, unauthorized disclosure of the plaintiffs' sensitive personal information to DOGE affiliates is irreparable harm that money damages cannot rectify," Boardman wrote. She found that "unauthorized disclosure of the plaintiffs' sensitive personal information is an injury in fact." But Agee wrote that "the district court misread our precedent in requiring nothing more than abstract access to personal information to establish a concrete injury." Richardson wrote that the plaintiffs didn't meet the high bar needed for an injunction: To have granted a preliminary injunction, the district court had to find, among other things, that the plaintiffs alleged an injury bearing a close relationship to a common-law harm, and that the government's actions here were judicially reviewable 'final agency actions' under the Administrative Procedure Act, and that the availability of monetary damages under the Privacy Act did not qualify as an adequate remedy precluding a cause of action under the APA, and that the government's disclosure of data did not fall under the Privacy Act's listed 'need-for-the-record' provision permitting intra-agency use, and that the ongoing access of the plaintiffs' data constituted an irreparable injury unable to be redressed later through an award of monetary damages. Richardson continued, "And for each of the five issues, the plaintiffs had to show their likelihood of success was not just high but extremely high—otherwise, the multiplicative product of the five probabilities, i.e. the likelihood of winning the entire case, would be too low. It is hard to believe the plaintiffs could have shown that." Another judge criticizes DOGE’s “unfettered access” Plaintiffs argued that unauthorized access to their information "bore a close relationship to the harm inflicted by the common-law tort of intrusion upon seclusion," Richardson wrote. He said this analogy fails: But intrusion upon seclusion has long been understood to guard not against the disclosure of sensitive information as such, but against the feeling of unease when and where one should ideally be at peace. Its harm is felt when a reporter accosts a convalescing patient in the hospital, when a private detective peers through a neighbor's bedroom window for weeks, and when a photographer snaps an opportunistic photo of a woman's underwear. This is distinct from the plaintiffs' alleged harm of unauthorized access. The harm required for an injunction "is not present here," according to Richardson. He wrote that each "plaintiff's information is one row in various databases that are millions upon millions of rows long. The harm that might come from granting database access to an additional handful of government employees—prone as they may be to hacks or leaks, as the plaintiffs have alleged—strikes me as different in kind, not just in degree, from the harm inflicted by reporters, detectives, and paparazzi." Judge Nicole Berner, a Biden appointee who dissented from the 8-7 vote against an en banc hearing, said the court "majority effectively denies the plaintiffs the relief they seek without adjudication of their case on the merits. Permitting DOGE unfettered access to the plaintiffs' personally identifiable information lets the proverbial genie out of the bottle. Even if they ultimately prevail, the plaintiffs will already have suffered irreparable harm." In addition to the Department of Education and OPM, the case involves the Treasury Department. But the Treasury Department is still subject to a preliminary injunction granted in a different case regarding DOGE's data access. Jon Brodkin Senior IT Reporter Jon Brodkin Senior IT Reporter Jon is a Senior IT Reporter for Ars Technica. He covers the telecom industry, Federal Communications Commission rulemakings, broadband consumer affairs, court cases, and government regulation of the tech industry. 22 Comments