U.S. Supreme Court in NASA v. Nelson Launches Constitutional Debate on Employees’ Informational Privacy Rights

by Tiffany Wong · October 25, 2010

Two years ago, the Federal Appeals Court for the Ninth Circuit (the “Ninth Circuit”) in Nelson v. NASA, No. 07-56424 (9th Cir. 2008) (pdf link) decided a case that has re-opened constitutional debate about employees’ right to protect personal information – especially from the allegedly prying eyes of the government.

At issue for the Ninth Circuit was whether “low-risk” contract employees at the California Institute of Technology’s (“Caltech”) operation of NASA’s multi-billion-dollar research and development facility, the Jet Propulsion Laboratory (“JPL”), could be subject to open-ended background investigations as a part Caltech’s compliance with NASA’s implementation of the 2004 Homeland Security Presidential Directive #12 (“HSPD-12”) (a component of the Bush administration’s anti-terrorism initiative.) Such investigations included delving into personal information about medical treatment for past drug use and any “adverse” information about the employee including “financial integrity,” “mental or emotional stability” and private sexual matters.

A year earlier, the United States District Court for the Central District of California rejected the initial claim for a preliminary injunction by JPL employees under Section 304(A) of the National Aeronautics and Space Act of 1958, 42 U.S.C. s.2455(a) (“Space Act”) (pdf link) by stating that the Space Act allows NASA specifically to establish security requirements as deemed “necessary in the interest of national security.” Reversing the District Court decision, the Ninth Circuit on appeal held that a violation of employee’s privacy rights was not sufficiently tailored to a legitimate government interest. These employees – most of whom were scientists, engineers and administrative support personnel – did not work with classified material that posed a threat to national security, nor would NASA be harmed if this information were not disclosed. As such, Ninth Circuit granted a temporary injunction that remains in effect today in favour of JPL employees and against NASA’s intrusive background checks until SCOTUS further clarifies what is included in the right to informational privacy.

On October 5, 2010, the appeal, now dubbed NASA v. Nelson, was heard by the Nine at the US Supreme Court (“SCOTUS”). Interveners for JPL employees included the American Civil Liberties Union, the Union of Concerned Scientists and online privacy advocacy organization, the Electronic Frontier Foundation. For the first time in a generation, America’s High Court heard arguments about the constitutional right to personal privacy that has sent the blogosphere buzzing in anticipation of the pending decision that has yet to be released.

Ask Me Anything, Except That: Fourth Amendment Limits on Privacy Rights

This case reopens Fourth Amendment rights under the U.S. Constitution that guards against unreasonable searches and seizures. Some argue that the government’s actions to uncover information are not likely to be deemed “searches” within meaning of Fourth Amendment, even if the search has a “reasonable expectation of privacy” in the information sought. However, transcripts of the oral hearing released earlier this month (pdf link) revealed the court’s inclination to narrow the Ninth Circuit decision to contract government employees, as evidenced by Justice Sotomayor’s question to a representative for the petitioners:

Do you think there is something wrong with the Government having to explain why it seeks information? […] that begs the question of can you ask anything you want regardless of why?

The justices were concerned with comparisons between ranges of permissible questions for government employees as opposed to employees in the private sector— as they probed the government to justify broad disclosure.

NASA’s Argument: Security Concerns

Each side has a different response to this basic question. Specifically, NASA’s Brief for Petitioners on May 20, 2010 wants answers from SCOTUS about (pdf link):

1) whether the government violates a federal contract employee’s constitutional right to information privacy in the course of a background investigation, particularly counseling or treatment for illegal drug use in the past year protected under “records maintained on individuals” in the Privacy Act, 5 U.S.C. 552a; and

2) whether these rights are violated when the government ask the employee’s references for adverse information that may have bearing on the employee’s suitability for employment at a federal facility

They claim the federal government as a responsible employer requires “basic” and “routine” background checks of its employees to determine these individuals as “trustworthy.” NASA argues by analogy that “basic and routine” background checks serve the purpose of recommending the applicant for government employment or a security clearance.

Employees’ Argument: Privacy Interests

On the other hand, the brief for the respondents (pdf link) requests SCOTUS to determine whether the Ninth Circuit correctly concluded its decision. They argue the seriousness of their informational privacy claim whereby “low-risk, long-time employees” of Caltech who are employed contractually with NASA are required to fill out intrusive questions on employee forms. In their opinion, these required forms delve unreasonably into 1) confidential details about medical treatment or counseling for past drug use and 2) any “adverse” information of the employee including sexual matters. Whalen v. Roe, U.S. 589, 599 (1977) is cited as a key precedent that recognizes the constitutional right to informational privacy as including “the interest in avoiding disclosure of personal matters.” The respondents’ argument also emphasizes the fact that the respondents are 28 employees of Caltech and not employees of the federal government, which renders questionable the reasonableness of the information sought.

Waning Constitutional Privacy Rights in a Post 9/11 World

While it may very well take the entire judicial term for the decision to be released, I predict that SCOTUS will reluctantly defeat the Ninth Circuit injunction with new limits establishing some private information to be obtained from these employees that may not permitted to be asked by other types of employers. Being employed at NASA, in this case, is not the same as non-governmental corporations, like Caltech. However, given the inclinations of the SCOTUS transcripts, supposedly “standard employee information” about past criminal records, mental and emotional status and illegal drug use may remain relevant to internal security at a government entity like NASA. That said, delving further into employees’ private sexual matters (short of sex crimes) will be difficult for NASA to justify as requisite information to maintain a team of scientists, engineers, and administrative personnel employed on contract in work classified as “low-risk.”

Furthermore, it may be difficult to justify information such as private sexual matters as necessary disclosure for employees working on NASA’s “high-risk” projects in light of the Space Act which is tailored for national security. An individual’s criminal tendencies rather than ability to maintain personal “financial stability” poses a greater threat to “internal subversions” and “foreign aggression” in accordance with the objective of the Space Act. Indeed, it may be the Fourth Amendment and the Privacy Act that may save the Ninth Circuit decision; however, the case transcript shows a possibility of striking down the injunction. Either way, the final decision will likely be coloured by today’s political climate. In a post-9/11 world, constitutionally permitted surveillance will factor into a delicate balance to maintain national security that unfortunately impinges upon the sanctity of individual privacy rights.