united-states us-federal-government
Is the government liable for data destroyed during a forensic examination?
<p>Lets say you just traveled outside your home country (USA). You keep your data on a secure USB (FIPS 140-2 level 3) that will self destruct after (x) number of failed attempts. The data you keep on your drive is very important (Company Secrets, Passwords, Unrecoverable encryption keys, etc.. Very valuable data). When entering the country again the CBP agent flags you for an additional inspection. Upon inspection, they discover your super secure USB with a keypad that peeks his interest. They decide they want to inspect what is on the drive. When asked to unlock the drive you refuse but divulge that very important business data is on the drive. </p>

<p>..At this point they claim you might be a "terrorist" in order to have reasonable suspicion. The CBP agent confiscates the USB in order to do a "forensic examination". During this examination someone handling the drive attempts to unlock the drive too many times and destroys the data. </p>

<p><a href="https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf" rel="nofollow noreferrer" title="CBP  DIRECTIVE  NO.3340-049">CBP DIRECTIVE NO. 
3340-049</a>,</p>

<blockquote>
  <p>5.4.1.5 
  <strong>Safeauarding Data  During Storage and Transmission.</strong> 
  CBP 
  will 
  appropriately 
  safeguard information 
  retained, copied, 
  or seized under 
  this Directive and 
  during 
  transmission 
  to another 
  federal 
  agency. 
  Appropriate safeguards 
  include keeping 
  materials 
  in locked cabinets or 
  rooms, documenting and 
  tracking 
  copies 
  to ensure 
  appropriate disposition, and 
  other safeguards during 
  transmission such as 
  password 
  protection 
  or 
  physical protections. 
  Any 
  suspected 
  loss 
  or 
  compromise 
  of 
  information 
  that 
  contains personal data retained, 
  copied, 
  or 
  seized under 
  this 
  Directive must 
  be 
  immediately reported 
  to the 
  Port Director, Patrol 
  Agent in Charge or 
  equivalent level 
  manager 
  and 
  the CBP Office 
  of 
  Internal Affairs</p>
</blockquote>

<p>The data on the drive causes your company to go belly up due to the lose of this drive. This costs you personally millions of dollars and potentially billions worth of investor money.</p>

<ul>
<li>Is the government liable for data destroyed during a forensic examination?</li>
<li>What agency would be liable?</li>
<li>Are there limits to the amount you can sue the federal government?</li>
</ul>

<p>It's well known that the US federal government generally has immunity from liability, unless you can possibly prove negligence on the part of an employee. See <a href="https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_United_States" rel="nofollow noreferrer">Sovereign immunity in the United States - Wikipedia</a>.</p>

<p>You would sue the agency who employs the technician who tried to guess the login and hope to prove that the employee knew that his actions could cause the data loss. And in that lawsuit, you will allege that the loss of the data caused your company to fail and you are suing for compensation in the amount of your losses.</p>

<p>You will have to prove that the data was business critical in order to make your case, but without (a copy of) the data to prove that it was indeed critical to your business, where is your case? And one part of the government's defense will be that if that data was so valuable, why didn't you have a backup?</p>

<p>How much can you sue for? Any amount. But don't count your chickens before they hatch.</p>

<p>Given the obvious risks of taking the sole copy of such valuable data on a portable device (what if the carrier is mugged, or has a pocket picked, or falls into water, etc?) this might be deemed so foolish that a reasonable person would not have so acted, which might reduce or eliminate damages.</p>
