Thursday, December 6, 2007
Ninth Circuit Judges Appear Skeptical of JPL Background Checks
By KENNETH OFGANG, Staff Writer
A Ninth U.S. Circuit Court of Appeals panel yesterday appeared to be leaning in favor of enjoining, at least temporarily, a program of background checks that scientists at Jet Propulsion Laboratory have challenged as overly intrusive.
“You’re doing a good job, “ Senior Judge David Thompson commented as Virginia Keeny argued that her clients’ constitutional rights of privacy were being violated. “Keep it up.”
Keeny, of Pasadena’s Hadsell & Stormer, said the program, developed by the Department of Commerce pursuant to a presidential directive known as HSPD-12, is “onerous” as applied to employees who do not deal with classified material, do not have or need security clearances, and have been identified by the government as holding “non-sensitive” positions.
The attorney explained that under the president’s directive, federal agencies are required to develop uniform means of identification, designed to ensure that unauthorized persons to not obtain access to security-sensitive information. As part of that mission, the department, which includes the National Aeronautics and Space Administration, is seeking to develop a OneNASA security badge to be worn by all employees.
As part of that effort, workers at JPL have been fingerprinted and required to provide other forms of identifying information. Keeny’s clients—28 scientists, many of whom have been working at JPL for over 20 years and who are seeking certification for a class consisting of the 97 to 98 percent of JPL employees who do not do high-risk, security-sensitive work—do not object to that part of the program.
What they object to, Keeny explained, is the requirement that they provide detailed background information, including disclosures of mental health history; past use of, and counseling for, controlled substances; past arrests—regardless of whether they resulted in the filing of charges—and the names of three references, each of whom will be asked by the government to complete a questionnaire regarding what they know of the JPL employee.
The plaintiffs also object to the fact that the disclosure form contains an express privacy waiver, which Keeny said could be used to obtain personnel files from past employers, which “inevitably contain medical information, financial information” and other types of data whose disclosure goes way beyond any legitimate security interest.
Preliminary Injuction Denied
The plaintiffs’ motion for preliminary injunction was denied earlier this year by U.S. District Judge Otis Wright, who found that some of their objections were not ripe for review, that they did not appear likely to prevail, and that the government’s national security justifications for the program tipped the balance of hardships in its favor.
A Ninth Circuit motions panel, however, held in October that the employees had a strong enough case to justify enjoining the program pending a ruling on their appeal of Wright’s order.
JPL is part of the California Institute of Technology, and is located a few miles from the school’s Pasadena campus. Its programs are operated by the school pursuant to a contract between Caltech and NASA which is part of the Department of Commerce.
The lawsuit, naming NASA, the department, and Caltech as defendants, placed the school in the awkward position of being forced to defend a program to which it objected. Caltech attorney Mark Holscher of Kirkland & Ellis explained to the panel yesterday that if scientists are no longer allowed access to the lab by NASA, the school would be forced to effectively terminate their employment, despite their years of loyal service to the institution.
Holscher explained that while the school would treat an order of the appeals court as superseding its contract with NASA, and thus would not terminate an employee for refusing to cooperate with the program if the court enjoined the government from implementing it, Caltech considers itself a private actor not bound by constitutional privacy guarantees that apply to the government and thus not a proper party to any injunction.
Keeny argued that as an active participant in the implementation of the program, Caltech has taken on an attribute of a governmental entity and is thus subject to being, and should be, enjoined along with NASA.
The attorney also argued that the program could be more narrowly tailored to serve the government’s legitimate interests, rejecting NASA’s expressed concerns about employees snooping around the outside of buildings where sensitive programs are based, even though they lack access to the building interiors.
Department of Justice attorney Mark B. Stern said the program’s intrusion on “informational privacy” rights was far more limited than in similar programs that courts have rejected in the past, and that the injunction was properly granted.
Stern pointed out that of the employees who have cooperated with the program, none have been found unsuitable for continued employment as a result. He said the program has adequate safeguards against abuse, because employees are entitled to be notified of any adverse information leading to a proposed determination of unsuitability, and to go through an appeals process before such a determination becomes final.
He also argued that the questions employees were required to answer were important. NASA, he said, has a right to know, for example, if a JPL worker “is violating the law by using illegal drugs.”
Stern further contended that the questioning of third parties listed as references would not violate privacy rights, since it would be voluntary and the references would only be asked to fill out a questionnaire that he characterized as appropriately limited in scope.
The latter contention drew the ire of Judge Kim M. Wardlaw, who accused Stern of trying to “distort the record.” Holding up a copy of the questionnaire, she pointed out that the last question is an open-ended one, inviting the recipient to “fill in the blank” with any comments they wish about the subject.
Wardlaw also questioned Stern’s claim that the employee questionnaires were similar to those filled out by other government and government-contractor employees, including those at the Ninth Circuit. “I know that nobody in this building fills out this form,” Wardlaw said, holding up the “Form 85” objected to by the plaintiffs, adding that the court’s law clerks raised a ruckus when they were asked to submit fingerprints after Sept. 11, 2001.
Wardlaw also told Stern that the government had failed to show “an overt harm” that would result from delaying the implementation of the program for a matter of months pending a trial on the merits in the district court.
The panel, consisting of Wardlaw, Thompson, and U.S. District Judge Edward Reed on Nevada, sitting by designation, gave no indication as to when it would it rule.
The case is Nelson v. National Aeronautics and Space Administration, 07-56424.
Copyright 2007, Metropolitan News Company