Government Malfeasance?

by Chris Markham. 0 Comments

Over the past few years, we’ve seen data breaches on an increasingly large scale. First it was a bank with tens of thousands of names and personal information in the hands of the black hats. Then, hundreds of thousands of people had their department store credit card information seized by hackers. Now, it would appear that the federal government, and its millions and millions of employees have been compromised. Things go from bad to totally apocalyptic.
With the banks and the department stores, there are numerous avenues of redress to fix the damage a data hack can wreak – you can pursue civil litigation, potentially hold the store (or it’s data servicer) hostage for cash and/or prizes. Failing any of that, you can certainly vote with your feet, as they say, and shop other stores or “save” at other banks. But the federal government? Well, that’s a whole ‘nother can of worms.
You see, it’s very difficult, if not downright impossible to sue the federal government. The Tenth Amendment to the United States Constitution prohibits it, allowing litigation to proceed against the government in a few very narrow exceptions. Heck, if you wrote the laws, you’d make it pretty darn hard to sue you, right?
So what is your alternative if you’re the victim of such a breathtaking breach in security? There are a few, if you’re willing to subject yourself to the risk. Recently, it seems as though our government has a bit of a vengeful streak when it comes to those that attempt to take on the system. As we’ve seen with the IRS issue, the whistleblowers, those that attempt redress through the judicial branch, the litigious individuals find themselves audited by the IRS, counter-sued for damages wrought by their “poor” job performance whilst in the feds employ, or, just being followed menacingly by local, state and federal authorities when you’re out and about running errands.
As a side note, I had always heard these stories about the aforementioned tactics, and I had always chalked up the speaker’s experience to either an overactive imagination or being a part of the “Aluminum Foil Hat Crowd.” But a client of mine once wanted information from the TSA and I filed a Freedom of Information Act request to obtain same. Predictably, the response to our request came back empty. I was in the process of appealing the decision, and I was on the phone with my client while driving down 270. I remember him saying that I was going to be put on a list somewhere, and he hoped I didn’t have any air-travel planned. I was about to laugh him off when I noticed that I was in one of the middle lanes of the highway. That in and of itself was not unusual; however, I was completely surrounded by local, state and federal police cars from various jurisdictions. To this day I laugh it off as some sort of coincidence, but the whole scene kind of hit close to home.
In any event, what can you do if all of your personal information was stolen right from under the government’s nose? Well, you can attempt to sue (I know what I said earlier) under a theory that the individuals involved in the government were negligent in performing their duties. That’s a less palatable way around the no suing the government rule, but, nonetheless, you’re still taking things out on a person instead of the government. This will take some gumshoe work on your part, as you’ll have to determine the employee that was responsible for making the decision, make almost unassailably sure that, at some point, that person made the decision to not select a newer encryption code (or whatever the kids call it these days), or server farm either as a result of their negligence (too lazy, drunk, paying attention to paying for the tuition to private schools, etc.), or because they had some vested interest in keeping security fairly lax (it was an inside job, their brother-in-law owned the data security company the agency contracted with and if he took the contract away, life at home would be pretty grim). If you can obtain this holy grail of information, then you gird yourself up and fight it in court.
Thankfully, though, the government usually does that hard work for us – it isolates a scapegoat to be blamed for the most current issue, as well as any and all other issues that happened in the past couple of years since the last meltdown. Usually the poor sap has no job and no money by the time they’re done with them, making the person judgment-proof. And people say the government is inefficient.

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