Respond to this colleagues (BELOW): A page and please, provide references)
Does the public have legal recourse if government systems fail to fill gaps in their framework implementation resulting in harm to a citizen? Explain.
Post from colleague 1
This is a very complex question. The answer is yes and no. First let’s define legal-recourse. Your Dictionary defines legal-recourse as, “an action that can be taken by an individual or a corporation to attempt to remedy a legal difficulty.” By this definition, one could seek legal recourse from a government entity. However, state and federal governments are protected from legal recourse by the doctrine of sovereign immunity. (Cornell Law, 2020). This is where the “no” comes in. Sovereign Immunity is defined by Cornell Law School as, “The sovereign immunity refers to the fact that the government cannot be sued without its consent.” The second part of that definition states that the government can “allow with consent”, legal recourse by the public. I personally am not seeing where this would actually be allowed. The 11th Amendment also protects the government as well from citizens pursuing legal recourse against a state or federal entity.
Then the Federal Tort Claims Act come into play. This is the “yes” that the public can seek legal recourse against a government. “The Federal Tort Claims Act (“FTCA”) allows certain kinds of lawsuits against federal employees who are acting within the scope of their employment.” (Goguen, 2020). In the event that a government failed to fill the gaps in their framework and knew about it, which resulted in a direct harm to others, would be considered negligence. The Federal Torts Claims Act would allow for public recourse in this case. Proving the negligence would be the legal battle.
With all of that being said, some of this may need to be amended as technology continues to pave a road that has never been walked. Legislation is constantly being established in the cybersecurity arena. Most of the legislation has been concerned with and focused on the digital privacy on the citizens.
Cornell Law School. (2020). Legal Information Institute: Sovereign immunity. Cornell Law School. https://www.law.cornell.edu/wex/sovereign_immunity
Goguen, D. (n.d.). Suing the government for negligence: The Federal Torts Claims Act. Nolo. Retrieved on August 29, 2020, from https://www.nolo.com/legal-encyclopedia/suing-government-negligence-FTCA-29705.html
Makarem & Associates. (2014). The Federal Tort Claims Act: You can sometimes sue the government for negligence. Makarem Law. https://www.makaremlaw.com/blog/2014/04/the-federal-tort-claims-act-you-can-sometimes-sue-the-government-for-negligence/
YourDictionary. (n.d.). Legal-recourse. In YourDictionary.com dictionary. Retrieved August 29, 2020, from https://www.yourdictionary.com/legal-recourse
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