NASA v Nelson Says “Ridiculous” to U.S. Constitutional Right to Informational Privacy

Originally argued in front of the Supreme Court of the United States (SCOTUS) last fall to lively online and media debate, the recent decision of NASA v Nelson (2011) 562 U.S. was released on January 19, 2011 to considerably less fanfare in the blogosphere.


As discussed in my prior post about this case, at issue was whether “low risk” contract employees at Caltech’s Jet Propulsion Laboratory (JPL) could be subject to open-ended background check investigations.

These background checks began as a part of a Bush administration security directive that included asking employees questions about “recent illegal drug use,” “financial integrity,” “mental or emotional stability,” and “general behavior or conduct” (that some interpreted this question as referring to sexual orientation). The basic issue is whether these employees have a constitutional right to information privacy in this context as the case landed on the docket of the SCOTUS when the Ninth Circuit Federal Court of Appeal granted a temporary injunction against these disputed background checks.

The Supreme Court Decision

SCOTUS decided to uphold NASA’s background checks for employees of contractor companies. In a unanimous 8-0 opinion delivered by Justice Alito, SCOTUS reversed the Ninth Circuit’s decision. Alito’s judgment took a straight-forward, narrow, and somewhat bland route to come to its conclusion without delving deeper into the constitutional question. Instead, the Court permitted background checks in the narrow scope of “routine use” by emphasizing the importance of the work done at the JPL that is critical to NASA’s mission and “all of it funded with a multibillion dollar investment from the American taxpayer.” As such, “the Government has a strong interest in conducting basic background check into the contract employees minding the store at JPL.”

As is often the case, Justice Scalia’s reasons, here in concurrence, contained far more colourful commentary in reaching the same result through his own rather different reasoning. Particularly interesting was Scalia’s judgment that outright rejected the notion of a U.S. constitutional right to “informational privacy,” dismissing the respondents’ position in this case as “meritless,” “absurd,” “utter silliness,” and “ridiculous.”

Scalia wrote:

Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information.  But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them.  A federal constitutional right to “informational privacy” does not exist.

Scalia’s opinion expressed concern for creating a right that would dramatically increase the number of lawsuits relating to right to information privacy:

Moreover, the utter silliness of respondents’ position in this case leaves plenty of room for the possible success of future claims that are meritless, but slightly less absurd.  Respondents claim that  even though they are Government contractor employees, and even though they are working with highly expensive scientific equipment, and even though the Government is seeking only information about drug treatment and information from third  parties that is standard  in background checks, and  even though the  Government is liable for damages if that information is ever revealed, and even though NASA’s  Privacy Act regulations are very protective  of private information, NASA’s background checks are unconstitutional.  Ridiculous.


Previously at, I predicted a “reluctant defeat” of the Ninth Circuit decision with “new limits” set on privacy rights. My predictions were partially correct— SCOTUS did indeed defeat the Ninth Circuit decision, but did so resoundingly and without much hesitation.

Unfortunately, Justice Alito’s decision contained little discussion clarifying the existence or scope of an American constitutional right to informational privacy. This in essence opens up the issue to further public debate, which is another element of the decision that I found surprising. The failure of the SCOTUS to discuss it and the tepid interest in the blogosphere suggest to me that claiming informational privacy as a constitutional right is waning in the age of Twitter and Facebook (notably beginning with an aging bench at SCOTUS who did not grow up with the internet).

Even for those who have become accustomed to the changes in privacy rights driven as much by technology as political developments, this case may indicate a trend towards losing traditional notions of a right to privacy, especially when it is confined to narrow spheres of employment disclosure. In its conclusion the case spells out a judicial reluctance to deal with a tricky and ambiguous constitutional treatment of privacy rights in the 21st century. This is unfortunate, as this is not an issue likely to be disappearing any time soon.

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