Metropolitan News-Enterprise


Thursday, January 20, 2011


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Supreme Court Approves Background Checks for JPL Workers




Background checks of scientists and other workers involved in non-classified research at the Jet Propulsion Laboratory do not violate any constitutional right to informational privacy, the U.S. Supreme Court ruled yesterday.

Justice Samuel Alito, writing for the court, noted that past cases discussed the possible existence of such a right, but never definitively held that there is one, and that the justices have “said little...on the subject” since the 1970s.

But if there is such a right, it was not violated by the JPL program—which was placed on hold by the Ninth Circuit in October 2007, three months before the panel ruling—, Alito said. That conclusion, he explained, is based on the significance of the governmental interests at stake, including combating illegal drug use; the relatively benign nature of the questions asked of employees and references; and the availability of statutory protection of private information from public disclosure.

Alito was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Justices Antonin Scalia and Clarence Thomas authored separate concurrences, arguing that there is no constitutional right to informational privacy and expressing fear that by not holding to that effect, the court might be opening the door to baseless challenges of similar programs in the future.

Justice Elena Kagan, who was involved in the defense of the program as solicitor general, was recused.

The plaintiffs were scientists, engineers, and administrative workers at Pasadena-based JPL, which is operated jointly by the California Institute of Technology and the National Aeronautics and Space Administration. Like the vast majority of JPL employees, they do not have or need security clearances, and were identified by the government as holding “non-sensitive” positions.

Presidential Directive

The program was developed by the Department of Commerce, NASA’s parent, pursuant to a presidential directive known as HSPD-12. The directive provides that employees of government contractors should be required to undergo the same types of background investigations as government employees doing similar work.

The plaintiffs objected to requirements 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.

The government, in turn, asked each of those references to complete a “Form 42” questionnaire regarding their knowledge of the  JPL employee, including questions about the employee’s “honesty,” “financial integrity,” and “mental or emotional stability.”

The plaintiffs also objected to the fact that one of the forms the government demanded they sign—known as Standard Form 85—contains an express privacy waiver, which they alleged could be used to obtain personnel files from past employers and other types of data whose disclosure goes way beyond any legitimate security interest. 

Ninth Circuit Ruling

The Ninth Circuit, in an opinion by Judge Kim Wardlaw, concluded that there was a strong possibility the plaintiffs, who appealed after U.S. District Judge Otis Wright II denied them a preliminary injunction, would prevail on their informational privacy claim.

Alito, however, said the government has a heightened interest in collecting information about JPL employees because it is the proprietor of JPL, where Caltech employees work alongside civil servants on projects for which the federal government is responsible.

“We reject the argument that the Government, when it requests job-related personal information in an employment background check, has a constitutional burden to demonstrate that its questions are ‘necessary’ or the ‘least restrictive’ means of furthering its interests,” the justice wrote.

The questions asked of employees, Alito said, “are reasonably aimed at identifying capable employees who will faithfully conduct the government’s business.” That the questions are open-ended, he said, does not make them objectionable, since “references do not have all day to answer a laundry list of specific questions.”

The questions must be considered reasonable, he said, given their pervasiveness in public- and private-sector background investigations.

Alito went on to note that under the Privacy Act, the information obtained in the background checks cannot be disclosed without the employee’s written consent, and that there is criminal liability for willful, unauthorized disclosure. The plaintiffs’ contention that “broad” exceptions to the Privacy Act could result in information being disseminated for improper purposes does not hold water in light of the statutory language or applicable precedent, the justice insisted.

Scalia, joined by Thomas in his concurrence, argued that any right to informational privacy must be based upon statute, rather than  the Constitution. He also noted that the plaintiffs failed to explain in their brief where in the Constitution the right to informational privacy can be found.

“To tell the truth, I found this approach refreshingly honest,” the justice wrote. “One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution. Regrettably, this Lincolnesque honesty evaporated at oral argument, when counsel asserted, apparently for the first time in this litigation, that the right to informational privacy emerged from the Due Process Clause of the Fifth Amendment.”

It is “farcical,” Scalia argued, to contend “that a right deeply rooted in our history and tradition bars the Government from ensuring that the Hubble Telescope is not used by recovering drug addicts.”

In a footnote, Alito defended the majority’s decision not to address the existence of a constitutional right to informational privacy, noting that the government did not argue that no such right exists.

Pasadena attorney Dan Stormer argued the case for the plaintiffs, while Acting Solicitor General Neal Katyal made the case for the government.

The case is National Aeronautics and Space Administration v. Nelson, 09-530.


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