Today on Lawfare: Feb. 7, 2025

From The Lawfare Editorial Team

Compiled by Caroline Cornett

Articles

DOGE Betrays Foundational Commitments of the Privacy Act of 1974

Danielle Citron warned that Elon Musk’s Department of Government Efficiency (DOGE) is a clear threat to privacy and democracy and a manifestation of the dangers the 93rd Congress anticipated when passing the Privacy Act of 1974.

Musk and his team’s access to agency computerized records is an affront to the purpose, spirit, and words of the Privacy Act of 1974. Musk’s staffers may not have been subject to any vetting, let alone the rigorous vetting necessary for government consultants or employees. The Privacy Act does permit the “routine use” of protected information if such use (including sharing) would be compatible with the reason the information was collected in the first place. In connection with the Privacy Act’s commitments, the Treasury Department and OPM have given notice about situations under which agency employees can share records with outside parties and agencies. Were those recognized “routine uses” at play when Musk’s team accessed agency systems of sensitive personal records? What if Musk’s team retrieved people’s records to assess their loyalty to the Trump agenda? What will Musk’s team do with the personal data stored in these highly sensitive systems of records? Will those records be used to carry out retribution that the President has promised? Retribution or loyalty tests have nothing to do with the purpose for which agencies collected that data.

DeepSeek Is a Win for Chinese Hackers

In this week’s Seriously Risky Business newsletter, Tom Uren highlighted that Chinese cyber espionage actors may use DeepSeek models to enhance their attacks. Uren also discussed a paper on what constitutes an “unforgivable” vulnerability, the European Union’s announcement of sanctions on 2020 intelligence collection operations, and more.

However, rather than presenting an insurmountable geopolitical or economic risk, the real danger here is more mundane—that DeepSeek models will be used by malicious threat actors to accelerate their campaigns. So far at least, it appears the safety and security features of DeepSeek models aren't up to the standard of other companies developing LLMs. Cisco, for example, found that all of its techniques to "jailbreak" DeepSeek R1 to elicit malicious behavior were successful.

A Multistakeholder Model of Cyber Peace

Jean-Marie Guéhenno, Olivia Grinberg, and Jason Healey argued that major technology companies are best poised to create a sustainable model of cyber peace and recommended collaboration between states, international organizations, and the private sector.

Any model for cyber peace must rely on major technology companies, which have both the relevant ability and the means to either stop the spread of cyber conflict or create meaningful barriers between adversaries. Ideally, this capability would be structured into multilateral institutions.

The Changing Landscape of European Privacy Enforcement

Kenneth Propp discussed legal challenges to the EU-U.S. Data Privacy Framework in European courts, including privacy class action litigation, litigation about the transfer of personal data from the EU to the United States, and more. Propp suggested that continued legal conflict on data transfer could make it an issue of geopolitical importance.

Privacy litigation involving data transfers to the United States has not gone away, however, and indeed seems destined to expand. One privacy activist’s challenge to the DPF is due to be taken up by an EU court soon, and rumors of a second case are becoming more concrete. In addition, European privacy nongovernmental organizations are poised to take advantage of new procedural possibilities for class-action-style litigation and for enhanced damages recovery, as detailed in the sections below. Europe’s changing privacy enforcement landscape could thus emerge as a significant policy issue during Trump’s and von der Leyen’s second terms.

The Situation: Our Tempestuous Day

Benjamin Wittes reflected on the parallels between the state of English government in 1819—as expressed in a sonnet by Percy Bysshe Shelley—and the actions of the U.S. government today.

Indeed, I have no better description of a Senate that would vote to confirm any presidential nominees while the president is busy dismantling federal agencies authorized and funded by Congress, impounding appropriated federal funds, and firing career civil servants. Except perhaps these: “Rulers who neither see nor feel nor know/But leechlike to their fainting country cling/Till they drop, blind in blood, without a blow.”

Podcasts

Lawfare Daily: Nayna Gupta on the Laken Riley Act: Anna Hickey spoke to Nayna Gupta about the Laken Riley Act becoming law, its impact on the immigration detention system, and more.

Videos & Webinars

On Feb. 7 at 5 p.m. ET, Wittes spoke to Anna Bower and Roger Parloff about various lawsuits targeting President Donald Trump’s executive actions, including DOGE’s recent actions, the deferred resignation program, and the attempt to fire FBI agents and employees. Lawfare material supporters were able to submit questions to the panelists and watch the livestream without ads. Become a material supporter of Lawfare on Substack or Patreon.

On Feb. 24, at 10 a.m. ET, the Brookings Center on the United States and Europe and Lawfare will hold a discussion on the war in Ukraine, looking at the path of U.S. and European relations with Ukraine before and during the conflict as well as what lies ahead in 2025 and beyond. The discussion will feature Brookings experts as well as the co-hosts of Lawfare and Goat Rodeo’s new limited series narrative podcast Escalation which chronicles the surreal twists and turns between the United States and Ukraine through the lens of the journalists, diplomats, spies, and ambassadors who crafted the relationship between the two countries. This event will be open to attend in person or watch online. Register for the livestream here.

Documents

Caroline Cornett shared a lawsuit filed by two federal employee unions seeking injunctive and declaratory relief in the face of the Trump administration’s efforts to dismantle the United States Agency for International Development.

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