Wednesday, 08 January 2014 04:44

NASA v. Nelson et al.: Background Checks and "Informational Privacy"

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In 2011, the United States Supreme Court issued a unanimous ruling against 28 employees at NASA's Jet Propulsion Laboratory, which is run by the California Institution of Technology, who sued NASA, claiming that required background checks violated their constitutional right to "informational privacy."


Background checks for federal employees have been required for some time, and in 2004, the requirement was extended to employees of government contractors following recommendations from the 9/11 Commission. In 2008, the U.S. Ninth Circuit Court of Appeals agreed with the employees and ordered that some government background checks be stopped while the case went forward.

In its ruling, the Supreme Court noted two types of questions in the checks that raised constitutional questions. First, employees were asked about drug use and counseling, and second, they had to sign a form that authorized the government to collect personal information about them from landlords, schools, employers, and others. This additional information was requested via an additional form that solicited "adverse information," including "violations of the law," "financial integrity," alcohol/drug abuse, and "mental or emotional stability." The form included a space for providing "derogatory as well as positive information" about the employee


In writing the opinion for the Court, Justice Samuel A. Alito assumed for the purposes of the ruling that there is a constitutional right to avoid the disclosure of personal information. He did not state on what part of the Constitution this was based or what types of information it covered.

He said that the information sought in this case did not violate whatever right may exist and that the question about drug treatment and counseling represented the government's recognition that illegal drug use is a criminal and medial issue and its desire to separate out individuals who are illegal drug users who are attempting to address and overcome their problems.

The questions asked of employee references provide "an appropriate tool for separating strong candidates from weak ones," Alito stated and are commonly utilized by employers in the public and private sectors. He also noted that privacy concerns should be allayed by the Privacy Act, which restricts how the government can use the data it obtains.

The Supreme Court ruling did not address whether individuals do have a right not to disclose information about their private lives to the government. The Court only "assumed" that there is a constitutional right to "informational privacy," - it did not rule on the issue. The Court stated that if there is such a right, this right was not violated in this case, and there is no need to settle this question at present.

This resulted in harsh criticism from Justices Antonin Scalia and Clarence Thomas. Justice Scalia, writing for himself and Justice Thomas, said he agreed with the result in the case, calling objections to background checks "ridiculous" and then focusing his criticism on the six justices who signed the majority opinion, saying that the Court is harming its reputation and violating its duty by issuing such vague rulings.

In his opinion, Scalia wrote “Whatever the virtues of judicial minimalism, it cannot justify judicial incoherence....(The majority opinion) provides no guidance whatsoever for lower courts” and “will dramatically increase the number of lawsuits claiming violations of the right to informational privacy.”

He said he would have ruled more simply that there was no constitutional right to informational privacy. "Like many other desirable things not included in the Constitution, ‘informational privacy’ seems liked a good idea,” but it should be provided through legislation and not by judges and constitutional interpretation.


NASA v. Nelson, et al., U.S. Supreme Court, Syllabus

Nelson et al. v. NASA, U.S, Ninth Circuit Court of Appeals, Opinion


New York Times


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