The magnitude of the breach led to national headlines and congressional hearings. According to the government, the information included full names, birthdates, home addresses, Social Security Numbers, fingerprints, and “findings from interviews conducted by background investigators,” such as “some information regarding mental health and financial history provided by applicants and people contacted during the background investigation.” On Lawfare, former national security official Michael Adams explained why the OPM breach involved “the greatest theft of sensitive personnel data in history.” In 2015, OPM revealed that in “two separate but related cybersecurity incidents” the personal information of 21.5 million former, current and prospective federal employees had been stolen from its databases. This post examines the court’s holding with regard to standing for those plaintiffs who brought statutory claims against the government and a government contractor responsible for the OPM database. Circuit’s decision serves as an important marker of the current state of the law. And because the Supreme Court passed on two opportunities last term to apply its standing doctrine in data breach class actions, the D.C. Circuit weighed in on that question, ruling that plaintiffs whose personal information was exposed in the 2014 infiltrations of the Office of Personnel Management (OPM) sufficiently alleged an “injury in fact” based on their “risk of future identity theft.” The court, in a per curiam opinion, added clarity as to the bar data breach victims must clear in order to establish that they have standing. Office of Personnel Management Data Security Breach Litigation, the U.S. In a 2-1 decision this past summer titled In re: U.S. As Lawfare has covered previously, there is arguably a circuit split over whether plaintiffs can establish an “injury in fact,” one of three constitutional standing requirements, on the grounds that a breach has put them at a heightened risk of identity theft. With data breach incidents on the rise, federal courts are grappling with the issue of standing in class action lawsuits arising from data breaches.
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