Thursday, January 21, 2016

Military & Veterans Affairs: The Impact of the OPM Data Breach

By Scott G. Johnson

         At some point in their careers, nearly all members of the military file a Standard Form 86 (SF 86) through the Office of Personnel Management (OPM) in order to have their personal backgrounds reviewed before they are granted a security clearance. The SF 86 requests personal information such as the member’s Social Security number, passport information, residence information for 10 years, schools attended, employment history, family member and relative information, foreign contacts and travel, criminal history, use of alcohol and illegal drugs, financial history, and any other associations. Understandably, OPM needs this information to properly assess whether an individual can be trusted with handling information of serious importance to the United States. Unfortunately, in April 2015, the OPM discovered that the background investigations of 4.2 million current and former federal government employees had been stolen by a massive cyber-penetration of OPM’s data files.

         Two months later, OPM revised its estimate upward and concluded that data on up to 1.1 million fingerprints and approximately 21.5 million Social Security numbers from nearly 20 million individuals who applied for background investigations, as well as nearly 2 million non-applicants, was compromised, making it arguably one of the largest security breaches in federal history. While the OPM security breach mainly affected active-duty military personnel, because the security breach was so large, it includes veterans, spouses of active-duty members and veterans, and family members and associates of active-duty military members and veterans, as well as other federal employees.

         Beginning in August 2015, OPM began providing individuals whose personal information had been compromised with instructions on what they needed to do to protect themselves. To its credit, OPM is offering those impacted with three years of credit monitoring, identity monitoring, identity theft insurance, and identity restoration services for themselves and their dependent children under the age of 18 through ID Experts, an identity theft protection company. For some of the services, the affected individual should be automatically enrolled. But some services offered require the person to register at with a PIN the individual should have received from OPM through the mail.  

         Most military members or veterans impacted by this breach likely won’t suffer any damage and will just need to remain vigilant about their cyber identity now that their personal information has been compromised. However, attorneys advising military members, dependents, or veterans who are injured, even if enrolled and benefitting from the identity protection services offered through OPM, should review the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680; the Military Claims Act, 10 U.S.C. § 2733; and the Military Personnel and Civilian Employees' Claims Act, 31 U.S.C. § 3721 to determine if the damages the individual suffered could be recovered with a properly filed claim under one of those statutes.