Supreme Court: NASA's intrusive background checks OK

NASA scientists had challenged background checks that included questions about past drug use. The Supreme Court ruling sidesteps the issue of whether there is a right to informational privacy.

Contract workers for the National Aeronautics and Space Administration (NASA) have lost their challenge to have intrusive government background investigations struck down as a violation of their right to privacy.

In an 8-to-0 decision announced on Wednesday, the US Supreme Court said the government has the power to insist that federal contract employees candidly answer certain personal questions – including whether they had received treatment or counseling for illegal drug use.

The ruling is a defeat for a group of 28 research scientists, engineers, and administrators at the Jet Propulsion Laboratory at the California Institute of Technology. The group filed a lawsuit challenging what they saw as overly intrusive background investigations that required that they answer personal questions or lose their jobs.

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Writing for the court, Justice Samuel Alito said the challenged background checks – including open-ended questions to neighbors and others about a worker’s honesty – were “reasonable, employment-related inquiries that further the government’s interests in managing its internal operations.”

At the center of the case was an allegation that intrusive background investigations violate a constitutional right to informational privacy.

The high court sidestepped the fundamental question of whether such a right to informational privacy actually exists in the Constitution.

Instead, Justice Alito qualified his opinion by noting that the court was assuming such a right existed. He went on to say that the challenged portions of the government’s background check did not violate that right in the case of the NASA contractors.

“The government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, satisfy any [related constitutional privacy issue],” he wrote.

Background checks since 1953

The Jet Propulsion Laboratory has been in operation since 1958 and is run by employees of the California Institute of Technology. Although it is a NASA facility, its workers aren’t federal employees, they are contractors.

Federal civil service employees have faced background checks since 1953. The checks were expanded to federal contractors in 2007.

JPL exists as a campus-like environment where basic scientific research is conducted, none of it classified. Many of the suing scientists had been working successfully at JPL for 20 years or more and objected to what they saw as a sudden unwarranted intrusion into their private lives.

Lawyers for the scientists argued that the Constitution prevents the government from requiring individuals to confess intimate details of their life unless the government can first demonstrate a legitimate state interest justifying the intrusion. Even then, the lawyers said, the intrusion must be narrowly tailored.

The high court disagreed. “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,” Alito wrote.

Some 74,000 contractors have undergone background checks in the past five years, according to the government. Of those, 128 were disqualified by adverse information uncovered during the investigations.

The high court’s decision included only eight justices because Justice Elena Kagan recused herself from the case because of her prior involvement in the issue as solicitor general.

Right 'does not exist'

Two justices, Antonin Scalia and Clarence Thomas, issued concurrences to Alito’s majority opinion. They said that while they agreed with the outcome of the case, they would have resolved the case by declaring that there is no federal constitutional right to informational privacy.

In his concurrence, Justice Scalia said he could find no reference to informational privacy in the Constitution.

“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,” he wrote. “But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them.”

He added: “A federal constitutional right to ‘informational privacy’ does not exist.”

Scalia warned that the high court’s failure to directly address the constitutional issue will encourage future lawsuits. He called the decision “a generous gift to the plaintiff’s bar.”

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