Musk’s Data Access Hinges on DOGE Status as Government Agency

A lawsuit challenging Elon Musk’s Department of Government Efficiency’s access to computer systems at a trio of federal agencies may fall on the issue of whether the group is actually an official agency.

Judge John D. Bates of the US District Court for the District of Columbia questioned whether DOGE employees dispatched to agencies like the US Department of Labor should be considered employees of those agencies, during a hearing over a motion to temporarily block DOGE’s access to data at three agencies. Only official federal agencies can enter into agreements to detail or share staff among other agencies.

The Trump administration has argued that DOGE is not an official government agency or instrument for purposes of the Privacy Act or the Administrative Procedure Act, but is an agency under the law that permits interagency detail agreements known as the Economy Act of 1932.

Bates suggested the Trump administration was trying to have it both ways. The government’s position is “we’re not an agency where we don’t want to be an agency, but we are an agency this one instance where we want to be,” Bates said.

The request for a temporary restraining order against DOGE was filed by the AFL-CIO and other unions on Feb. 12. They argued that the attempt to access sensitive information systems at the three agencies violates the Privacy Act and the Administrative Procedure Act. The Privacy Act requires agencies to get consent from individuals if their records are disclosed to another agency.

The unions requested the court order the government to return or destroy data collected by DOGE and to remove any software installed by DOGE at the agencies.

The AFL-CIO and other unions initially had sued over DOGE’s attempt to access data at the DOL, but amended their lawsuit to include HHS and the CFPB earlier this week. Bates had rejected their prior TRO request involving the DOL only on Jan. 7, finding that the union groups didn’t have standing to sue.

In the amended complaint filed Feb. 12, the groups included testimony from multiple members of the plaintiff unions whose personal data could potentially be exposed by DOGE’s access.

The government has argued that the unions don’t have standing to sue and that they failed to identify an agency action to be reviewed under the APA. The Trump administration also maintains that DOGE staff are detailed employees to the agencies that should have access to the data under the Privacy Act.

At the US DOL, there is currently only one employee working to implement the DOGE EO and no sensitive data has been shared with that staffer yet, according to the Trump administration’s filing Feb. 13 in response to the new TRO request. The EO instructed federal agency heads to give DOGE access to “all unclassified agency records, software systems, and IT systems” in order “to improve the quality and efficiency of government-wide software, network infrastructure, and information technology.”

The DOL plans to bring on more staff to carry out the order, but said in the legal filing that it “has established guidelines to cover employees carrying out the USDS EO to protect the integrity of the DOL’s informational systems.” That includes requiring 24 hours notice before one of these staffers accesses sensitive data, so that the agency has time to ensure compliance with laws like the Privacy Act.

“What more does the agency need to do?” Bates asked of the union plaintiffs.

Aman Tewari George, the attorney representing the union coalition, countered that they needed written assurances that the DOL would be willing to deny access if their legal obligations weren’t met by the end of the 24 hour period.

The lawsuit was filed by Democracy Forward on behalf of the AFL-CIO, the American Federation of Government Employees, the American Federation of State, County & Municipal Employees, the Service Employees International Union, Communications Workers of America, and the Economic Policy Institute.

The case is: Am. Fed. of Labor and Cong. of Indus. Orgs. v. DOL, D.D.C., No. 1:25-cv-00339, hearing on TRO request on 2/14/25.