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9/21/2017
09:23 AM
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OPM Data Breach Lawsuit Tossed, Fed Plaintiffs will Appeal

A judge ruled federal employees cannot sue for damages from the 2015 Office of Personnel Management data breach.

Federal employees plan to appeal a judge's decision stating they cannot sue for damages from the 2015 Office of Personnel Management (OPM) data breach, The Washington Times reported this week.

The workers won't be able to sue because they cannot show the stolen data has been used by attackers, said US District Judge Amy Berman Jackson. Compromised information includes sensitive personal details like financial and health data, taken from about 22 million personnel files. Experts have not been able to determine whether the stolen data was sold or used.

Judge Jackson's ruling is getting pushback from employee labor unions, which had filed a class action lawsuit to help workers whose data had been stolen and force the government to better protect information. The National Treasury Employees Union announced plans to appeal on Sept. 19; the American Federation of Government Employees National is debating the next steps.

OPM responded to the data breach with new security tools and launched multi-factor authentication for employees. The agency also made plans to hire a cybersecurity advisor.

Read more details here.

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REISEN1955
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REISEN1955,
User Rank: Ninja
9/21/2017 | 9:40:34 AM
Interesting
Workers cannot sue because of a data breach.  Read that: PEOPLE cannot sue over a data breach - Equifax.  This could have enormous legal consequences - something to watch.  (Lawyers love this stuff).
gwilson001
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gwilson001,
User Rank: Strategist
9/21/2017 | 2:06:00 PM
Re: Interesting
That is the underlying threat here - a precedent that Equifax will surely jump on to ward off the class action suits against them.  This was a shortsighted decision by a Judge that clearly does not understand the problem or the the impact this stupid decision will have on millions of victims of the Equifax and other future data thefts.

This is a common probelm, the judiciary does not understand technology and they consequently make idiotic rulings based on that lack of understanding.  This could let Equifax off the hook as far as civil actions are concerned.  unfortunate because Equifax should not be allowed to continue as a business - they cannot be trusted with sensitive data we have not given them explicit permission to aggreagate and store.
Dr.T
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Dr.T,
User Rank: Ninja
9/25/2017 | 11:41:55 AM
Re: Interesting
a precedent that Equifax will surely jump on to ward off the class action suits against them. That would be my guess too. This will be a long legal battle I would guess.
Dr.T
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Dr.T,
User Rank: Ninja
9/25/2017 | 11:43:17 AM
Re: Interesting
This is a common probelm, the judiciary does not understand technology and they consequently make idiotic rulings based on that lack of understanding. That makes sense. It would be hard to find a judge who understands the technology well enough tough.
Dr.T
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Dr.T,
User Rank: Ninja
9/25/2017 | 11:44:51 AM
Re: Interesting
Equifax should not be allowed to continue as a business I think there should be consequence for them, we are not sue how secure other two credit status firmss network.
Dr.T
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Dr.T,
User Rank: Ninja
9/25/2017 | 11:34:55 AM
Re: Interesting
Lawyers love this stuff Yes, it does not make sense and confuses the public, that would help lawyers.
Joe Stanganelli
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Joe Stanganelli,
User Rank: Ninja
9/26/2017 | 12:59:15 PM
Re: Interesting
Alas, the main reason it doesn't make sense is because reporters misreport and don't care enough to understand it themselves. (Scientists refer to this phenomenon as "Wet Roads Cause Rain".)

The law is not barring people from suing organizations who have wronged them by contributing to the compromise of their data. But if you have no actual damages to show/prove, then you generally have no remedy under the common law.

 A victim of actual identity theft or the like would have to be the plaintiff in such a case.

Does this seem draconian in the modern data age? Perhaps. But the common law doesn't concern itself with hypotheticals so much as actual damage. Maybe it's time for legislation to create a separate right of action for individuals independent of the common law, but fat chance seeing that, I suspect.

Joe Stanganelli
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Joe Stanganelli,
User Rank: Ninja
9/26/2017 | 12:52:31 PM
Re: Interesting
That's not really the point. It's not about standing to sue.

The point is that one of the essential elements to prove a negligence case is damages. If damages cannot be proven/shown, then a negligence suit must fail as a matter of law.

And even other types of common-law actions generally won't yield favorable plaintiff results if actual damage cannot be shown.

And this will remain the case until and unless legislation gets passed giving private citizens a separate private right of action in these data-breach cases, with its own damages/award rubric that is independent of common-law actions.

(Disclaimer: This post/comment is provided for informational, educational and/or entertainment purposes only. Neither this nor other posts/comments on this website constitute legal advice or the creation, implication or confirmation of an attorney-client relationship. For actual legal advice, personally consult with an attorney licensed to practice in your jurisdiction.)
tim77
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tim77,
User Rank: Apprentice
9/21/2017 | 12:25:18 PM
Information vs Money
Why should one have to prove they are damaged by having their information stolen? If a thief steals your money you don't have to prove they spent it only that they stole it. Information should be treated in the same manner!
REISEN1955
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REISEN1955,
User Rank: Ninja
9/21/2017 | 12:41:35 PM
Re: Information vs Money
Good point - information theft is invisible if compared to car or money theft.  If a thief breaks into your home, that is a robbery.  If a thief steals a garden hose outside, that is theft.  There is a difference.  Information is invisible of course but if you went to your ATM and instead of seeing $33,202 in savings and there is $-29.33 there, I would think legal recourse has to be taken somewhere.  A thief broke INTO SOMETHING to get your data.  The thief did NOT RETRIEVE YOUR ATM CARD from the street.  Same difference.  

The answer to your question is WHO was guarding the vault?  Who has responsibility for the vault?  If i leave my house wide open with a sign saying MONEY IN HERE, then I am clearly at fault.  Same with Experian to a degree.
Dr.T
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Dr.T,
User Rank: Ninja
9/25/2017 | 11:38:51 AM
Re: Information vs Money
information theft is invisible if compared to car or money theft That makes sense however data/information is value to the owners of that, and stolen so there should be consequence on that.
Dr.T
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Dr.T,
User Rank: Ninja
9/25/2017 | 11:40:13 AM
Re: Information vs Money
The answer to your question is WHO was guarding the vault? Who has responsibility for the vault? I would say that is the organization itself. Data maybe in all over the network, no breach should have happened.
Dr.T
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Dr.T,
User Rank: Ninja
9/25/2017 | 11:36:09 AM
Re: Information vs Money
If a thief steals your money you don't have to prove they spent it only that they stole it. That makes sense, I wonder where the judge is coming from. Very strange decision.
RyanSepe
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RyanSepe,
User Rank: Ninja
9/22/2017 | 8:28:02 AM
Based on outcome
I understand that this judgement was made based on the lack of evidence that attackers maliciously used the data in question but is there a statute of limitation for instances like this?
REISEN1955
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REISEN1955,
User Rank: Ninja
9/22/2017 | 2:39:41 PM
Re: Based on outcome
There is also a time-value on WHEN an attacker decides to use that stolen Mastercard number of SS number is there not?  An actor may wait weeks or months or have to dig through the 143 million stolen from Equifax before action is indeed taken.  Theft is theft - and break-in is theft writ large.  This is quite a legal tangle!!!  Kinda like stealing a car out of a driveway without breaking the window but parking it around the block until, oh, one night when it is sold for parts!!!  When IS the criminal act perfrmed?  
Dr.T
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Dr.T,
User Rank: Ninja
9/25/2017 | 11:48:12 AM
Re: Based on outcome
An actor may wait weeks or months or have to dig through the 143 million stolen from Equifax before action is indeed taken I would agree, otherwise why attack in the first place, they will eventually use it what they captured.
REISEN1955
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REISEN1955,
User Rank: Ninja
9/25/2017 | 1:55:12 PM
One real question ... Thefr of "what" exactly
If a thief takes a physical thing - car, wallet, jewelry, etc --- then that can be defined with a serial number and such and retrieved, also with a hard currency value for the loss.   DATA is somehing else and to a degree, even a license plate on our car exposes us.  This is VISIBLE stuff, not hard value stuff, so what is stealing it?  Writing down with pen and paper?  Nope.  It gets nasty when thieves break into a secure value (Equifax) and steal data which is theft from Equifax of propety under contract.   Technically, the law should probably extend Contract law to include the invidiaul whose data has been compromised.  Fine legal argument there.  But a VALUE cannot be placed on the data UNLESS probably it is USED to something else.  Then the LOSS value kicks in.  If I have a lost credit card but do NOT use it, I have not invoked a loss per se.  I have no bought anything.  What harm then is done?  Now, if I then start to buy stuff ON the stolen card, a hard dollar value can be kicked in for recovery.  

Interesting fine points indeed. 
Dr.T
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Dr.T,
User Rank: Ninja
9/25/2017 | 11:46:48 AM
Re: Based on outcome
lack of evidence that attackers maliciously used the data in question but is there a statute of limitation for instances like this? This would be a good question to ask, they may not have used it yet, that does not mean they will not.
Dr.T
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Dr.T,
User Rank: Ninja
9/25/2017 | 11:33:37 AM
Strange
The workers won't be able to sue because they cannot show the stolen data has been used by attackers This is new for me, so breach can happen but if data is not used that would not be consider an issue. Interesting.
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