Can the Privacy Act Put a Muzzle on DOGE? (Part I)
A three-part analysis of the DOGE debacle and how a little-known privacy law might contain this rabid beast.
On January 20, 2025, Co-President Donald Trump signed Executive Order (EO 14158), which established the Department of Government Efficiency (DOGE). Since its creation, and notwithstanding its deeply unserious memeified name and the fact that it’s not even a freaking government department at all, DOGE has come to represent a very serious problem with seemingly limitless and unchecked powers.
Within the first month of its creation, Elon Musk’s DOGE has been responsible for terminating tens, if not hundreds of thousands of federal workers around the country. Additionally, over 40,000 federal employees have accepted ‘deferred resignations’. DOGE has almost single-handedly shuttered the Consumer Financial Protection Board (CFPB), and gutted the US Agency for International Development (USAID). Today, I want to talk about the unbridled chaos that is DOGE, and how a previously little-known US federal privacy law might actually force the Trump Administration to limit the bite of its attack DOGE.
Note: Because this is a longish one, I am breaking this up into three parts.
Part I (this post) lays out what DOGE is, and whether DOGE’s band of chaos monkeys are even Federal Employees.
Part II will explore the Privacy Act of 1974 in more detail, as well as a breakdown of the 12 cases that have been brought against DOGE, the Trump Administration, the various agencies complying with DOGE’s unreasonable requests, and even Elon Musk.
Part III consists of my analysis, where I essentially lay out why (assuming the rule of law still exists in America) I think DOGE is violating the Privacy Act of 1974 and why it needs to be stopped.
What Is DOGE? Nobody Actually Knows!
It turns out that while the exact definition of the Department of Government Efficiency, or DOGE, is still rather amorphous, we do know one thing: DOGE is not a department at all. Section 3 of the Executive Order clarifies that DOGE is simply a stupidly-named rebrand of the Obama-era Executive Office organization f/k/a the US Digital Service (USDS) and now the US DOGE Service. Or as YouTuber Devin Stone (aka, the Legal Eagle) refers to it, ‘USDS in a skin-suit.’)
In addition to renaming the USDS, the EO establishes a separate 'Temporary Organization' known as the U.S. DOGE Service Temporary Organization (USDSTO), that will terminate on July 4, 2026, and appears to be something distinct from USDS proper. I believe that USDSTO is what most people are referring to when they say 'DOGE,' but I could be wrong. Both the USDS and USDSTO must be led by a USDS Administrator. This position (as of February 26) is currently helmed by Amy Gleason, who previously held the title of USDS Digital Services Expert from 2018-2021, and more recently, Senior Advisor with the USDS starting in January 2025.
The EO also instantiates 'DOGE Teams' which consist of 'at least four employees,' hired or assigned by each government agency, within 30 days of the January 20, 2025 EO. However, neither the Executive Office of the President (EOP) or 'any component thereof' (including DOGE) are to be considered agencies themselves.1
Section 4 of the EO clarifies that the US DOGE Service's remit is to modernize and improve the "quality and efficiency of governmentwide software, network infrastructure, and information technology (IT) systems" as well as working with agency heads "to promote inter-operability between agency networks and systems, ensure data integrity, and facilitate responsible data collection and synchronization." However, it’s dubious that IT modernization and interoperability efforts also include government-wide terminations of federal personnel, decimating agencies, or cutting off HIV treatments to kids in Africa.
Section 4, in addition to loosely defining the structure and scope of DOGE, also mandates the heads of actual agencies & departments take all necessary steps, in coordination with the USDS Administrator, to ensure that USDS has "full and prompt access to all unclassified agency records, software systems, and IT systems." Finally, USDS must adhere to "rigorous data protection standards" — I’m sure they’ll get right on that one, gang.
Are DOGE Staffers Federal Employees?
There's an open question on whether or not Elon Musk is an employee of DOGE or any agency. According to White House staff, Musk is considered a "special government employee" (SGE), with the title of "Senior Advisor to the President." Like other Senior Advisors, the richest man in the world "has no actual or formal authority to make government decisions himself," according to the White House.2 Rather, "Mr. Musk can only advise the President and communicate the President's directives."3 However, President Trump appears to have other ideas. On February 20, he declared that on January 20, he "signed an order creating the Department of Government Efficiency and put a man named Elon Musk in charge."
An SGE is defined under 18 U.S.C. § 202(a) as:
an officer or employee of the executive or legislative branch of the United States Government, of any independent agency of the United States or of the District of Columbia, who is retained, designated, appointed, or employed to perform, with or without compensation, for not to exceed one hundred and thirty days during any period of three hundred and sixty-five consecutive days, temporary duties either on a full-time or intermittent basis
There are explicit conflict-of-interest prohibitions 4[ stating that SGEs may not participate in matters that will have a "direct and predictable effect on your financial interests or those imputed" without an exception or waiver. Since waivers are public, and cannot be applied retroactively, it is unclear whether the Administration has met this burden. These ambiguities will likely prove relevant when it comes to judicial interpretations on whether actions undertaken by DOGE staff are legitimate, or fall afoul of laws, including the Administrative Procedure Act and the Privacy Act of 1974.5
But there is also ambiguity regarding the status of the DOGE chaos monkeys themselves. Depending on what document you read, they are listed as "political appointees,” (the White House) SGEs (court filings), or EOP staffers. According to Wikipedia, around 60 DOGE staffers have been brought in, or co-opted from the predecessor USDS. According to the New York Times, with the exception of five individuals appointed by the OPM, it is unclear how many DOGE staffers have been actually hired or assigned to agencies directly. Some, like Nikhil Rajpal, Jeremy Lewin, Gavin Kliger, and Steve Davis, are assigned to multiple agencies. Most have either direct connections with Musk (or Musk's friends), the Trump administration, or familial connections with other staff close to Trump. It’s a very fetid swamp.
This is sadly about all most of us know of DOGE and its structure. It's impossible to nail down much else, because DOGE staffers refuse to share concrete details of their titles, specific remits, or even basic details with the government employees like their job titles or surnames. Freedom of Information Act requests are unlikely to be fruitful either — For example, CNN reported that the response, from an OPM email address to their February 18, 2025 FOIA request, was: “Good luck with that they just got rid of the entire privacy team.” CNN also reported in that same article that staff handling FOIA requests had been dismissed.
Nonetheless, this shadowy band of deeply suspect folks have done a ton of damage in little over a month’s time. Numerous court documents and press outlets report that DOGE staff have accessed sensitive federal employee records (including employee health and financial information and social security numbers) held by the OPM, government payment data maintained by the Department of the Treasury, student loan recipient information held by the Department of Education, information on disaster victims managed by the Federal Emergency Management Agency, and employment- and workplace-related data of individuals disclosed by the Department of Labor. DOGE may also have access to US tax records from the Internal Revenue Service. In some cases, DOGE aides have even locked career civil servants out of the very databases they were given access to, raising major security and transparency concerns. According to press reports, DOGE has obtained access to records and information systems across almost 20 agencies, including:
United States Agency for International Development (USAID)
Department of Treasury (Treasury)
National Oceanic and Atmospheric Administration (NOAA)
Office of Personnel Management (OPM)
Department of Education (DoE)
Department of Labor (DoL)
Department of Defense (DoD)
Consumer Financial Protection Bureau (CFPB)
Department of Health and Human Services (HHS)
Small Business Administration (SBA)
Social Security Administration (SSA)
General Services Administration (GSA)
Housing and Urban Development (HUD)
Centers of Medicare and Medicaid Services (CMS)
Federal Aviation Administration (FAA)
Internal Revenue Service (IRS)
National Institutes of Health (NIH)
Based on one of the complaints alleging Privacy Act violations,
DOGE's approach seems to involve swooping in with new DOGE staff, demanding access to sensitive systems, taking employment action against employees who resist their unlawful commands, and then beginning to re-work the agencies at their will. This process moves incredibly quickly, with agencies transformed roughly overnight, or fully dismantled within a week.6
DOGE personnel and Elon Musk have also publicly stated that they are incorporating AI and machine learning as part of their efficiency efforts. According to various sources, DOGE team members are using government records to build a chatbot called GSAi and are in the process of modernizing a 20-year old Department of Defense reduction-in-force tool known as AutoRIF by letting a LLM decide who to fire and which job roles to cut, automatically without any human oversight. Separate AI models are also being developed to review contract and funding data from the DoE in order to identify areas to cut spending and identify which human work can be replaced by AI and machine learning.
So that’s DOGE. If you hate it as much as I do, you might want to read Part II, if for no other reason than to better understand how one of the few federal privacy laws in the US might actually help stop this trainwreck.
Executive Order 14158: Sec. 2. Definitions. As used in this order: (a) ‘‘Agency’’ has the meaning given to it in section 551 of title 5, United States Code, except that such term does not include the Executive Office of the President or any components thereof.
See: Declaration of the Director of the Office of Administration, Joshua Fisher.https://www.democracydocket.com/wp-content/uploads/2025/02/2025-02-17-Declaration-of-Joshua-Fisher.pdf
Declaration of the Director of the Office of Administration, Joshua Fisher.
See: U.S. Department of Justice, Justice Management Division, Summary of Government Ethics Rules for Special Government Employees (Feb. 6, 2006), https://www.justice.gov/jmd/ethics/summary-government-ethics-rules-specialgovernment-employees
I am also skipping over a load of things relevant to SGEs and administrative procedures generally, including ethics guidelines. The Legal Eagle (who I referenced earlier) has a great video discussing more of the mess, including details on SGEs in this Youtube video.
AFL-CIO et al., v. Department of Labor, et. al., Case No. 1:25-cv-00339, D.D.C., para 51