Battles Over Data Are Power Struggles, Says IAPP DC Head
Battles between states and the federal government over what is an appropriate -- and lawful -- amount of data to be shared between agencies and law enforcement is representative of a larger power struggle, said Cobun Zweifel-Keegan, IAPP managing director for Washington, D.C., in a blog post Friday.
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"Privacy professionals should not be surprised to see personal data cropping up again and again in ... legal battles," Zweifel-Keegan blogged. "After all, in the digital age, data has become the basic fuel of power and control."
"Quieter but no less contentious battles over the administration's access to personal data have been raging in the courts throughout the year," resulting in "a dizzyingly complex set of preliminary court opinions about data access touching everything from Social Security and tax records to state-managed voter rolls and public benefits programs," he added.
"It is still far from certain how these cases will play out as they move beyond their initial stages, but the clear trend is toward allowing, at least temporarily, the administration's push for increased centralization of data, though with ongoing limits on usage of this data and other guardrails."
Zweifel-Keegan cited the 2-1 decision at a federal court of appeals that lifted an injunction blocking the federal government's access to sensitive government data. On Tuesday, the 4th U.S. Circuit Court of Appeals tossed a suit from the American Federation of Teachers (AFT) and others, ruling that they were unlikely to succeed on the merits of their privacy case. The case challenges the Department of Government Efficiency's (DOGE) access to data at the Treasury Department, Department of Education and Office of Personnel Management (see 2508140028).
"Although the opinion takes pains to highlight the fact that this is a preliminary ruling subject to the limitations of summary judgment, it also deploys an onerous interpretation of how summary judgment should work, which the majority terms the 'multiplicative problem,'" Zweifel-Keegan said.
"In short, in complex cases where a plaintiff must win on multiple, independent legal hurdles to prevail -- such as establishing standing, proving the matter is reviewable under the American Procedure Act, and then proving a violation of the Privacy Act -- their overall probability of success is not their average chance, but the product of their probabilities on each separate issue."
"Whether the debates play out on procedural grounds, administrative procedures or substantive battles over legal privacy protections, we are still far from the end of understanding how the Trump administration's unified executive theory will interact with data privacy norms in the U.S.," he concluded.