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Argument preview: Personal privacy

The Supreme Court has recognized that the Constitution provides some protection for a right to keep private some personal information about one’s self — for example, medical information, financial matters, and sexual activity.  But the Supreme Court has not closely focused on the scope of that right in 33 years.  A case about the government’s power to seek access to some personal information, during a background employment or security check, puts the issue back before the Court — with the potential for a sweeping constitutional ruling, or a narrow one closely limited to specific facts.

The case is National Aeronautics and Space Administration v. Nelson, et al. (09-530).  At 10 a.m. Tuesday, Oct. 5, the Court will hear one hour of oral argument on it.  Acting U.S. Solicitor General Neal K. Katyal will argue for NASA.  Dan Stormer of Hadsell Stormer Keeny Richardson & Renick, in Pasadena, Calif., will argue for 28 scientists and engineers who work for a government contractor, California Institute of Technology, that operates NASA’s Jet Propulsion Laboratory located in Pasadena.  The Laboratory develops outer-space robots and communications, and is well known for its work in developing satellites, rockets, spacecraft, and telescopes.


The NASA case arises at the intersection of two histories: that of the government’s inquiry into the fitness of individuals who seek work with the federal government — a story that goes back to 1871, and the history of the constitutional right of “informational privacy” — a story that began with two Supreme Court decisions in 1977.  But there is another story that looms large in the background of the case: the gathering of vast stores of personal information via computer, and its storage in digital databases — with the ever-present threat that such data may at some point become public, perhaps resulting in theft of identity or serious embarrassment.

A federal law passed in 1871 authorized the President to set up a system to screen the qualifications of individuals who sought work in the civilian ranks of federal employment.  And, under a presidential Executive Order issued in 1953, the government has conducted background checks on all federal civil service workers.   In the course of such background checks, data is gathered from police, former employers and supervisors, persons given as references, and schools the person attended.  Those probes begin after a job applicant fills out a questionnaire. There is a different questionnaire for those seeking “sensitive” and those seeking “non-sensitive” positions.

One questionnaire — SF-85 — is a six-page form that asks, among other things, whether within the past year the individual has “used, possessed, supplied, or manufactured illegal drugs.”  If that is answered “yes,” further details are sought, including whether the individual had ever received “any treatment or counseling” regarding drug use.  The form says that the responses are voluntary, and that their confidentiality will be protected.

Another document — Form 42 — is sent to references, former landlords, and others who can verify work history or unemployment.  It asks those who receive it for any information they have about the individual’s employment, violations of law, abuse of alcohol or drugs, “mental or emotional stability,” and “general behavior or conduct.”  It winds up by asking whether the person would recommend the individual for a government position or security clearance.

Prior to 2005, the federal government did not use the background check process for employees of federal contractors.  Those workers were subjected to such checks only if that was specified in the contracts their employer had with the government.  This system changed, after the terrorist attacks on Sept. 11, 2001.  A federal commission that investigated how to prevent future such attacks suggested that the government develop a uniform standard for issuing IDs to enter secure or “vulnerable” federal facilities.  The Commerce Department put together such a program in 2005, imposing a government-wide identity credentialing standard.  It requires a background check for an individual who will have long-term access to federal facilities or information systems.

In 2001, even before that new system was installed, NASA had decided that its facilities might be vulnerable to security threats, because contractors were not doing background checks on their workers.  It started a review of its procedures.  Then, in 2005, it required all workers of contractors to undergo background checks in order to get identity credentials.  It adopted the system used for civilian federal employees, including the use of SF-85 and Form 42.  In 2007, at the JPL in Pasadena, NASA modified its contract with Caltech to require all workers there to have background checks.

While the government policy on background checks was developing, the constitutional concept of privacy for personal information was being established.  The most important development came in the Supreme Court, in 1977.

In the case of Whalen v. Roe, upholding a New York law requiring doctors to identify patients who had obtained drugs with a potential for abuse, the Court on February 22, 1977, said that prior cases dealing with protection of privacy “involved at least two different kinds of interests.  One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.”

Four months later, on June 28, 1977, in the case of Nixon v. Administrator of General Services, upholding a law that the federal government take custody of former President Richard Nixon’s official papers and audiotapes, the Court remarked: “One element of privacy has been characterized as ‘the individual interest in avoiding disclosure of personal matters’,” quoting from Whalen v. Roe.   Since then, the Court has made similar, fleeting references to the concept.

In the Whalen decision, and since, the Court has referred to the threat to personal privacy that may arise from the accumulation of vast amounts of personal information in computerized data banks or other government files.  However, it has not spelled out how far the right of personal information privacy extends.  Lower federal courts have expanded on the concept somewhat, enlarging the kinds of information that is said to be shielded by the privacy right.

At NASA’s Jet Propulsion Laboratory, the government’s interest in the backgrounds of contract employees and the concept of information privacy came into conflict in 2007.  Twenty-eight scientists and engineers, who had worked at the facility for years, objected in 2007 when NASA — on its own — modified its contract with Caltech over the contractor’s objection to require all JPL employees to undergo background checks.  If they refused, they would be considered to have “voluntarily resigned.”

In August 2007, those Caltech employees sued NASA in federal court, for themselves and for a class of all JPL employees — perhaps numbering 9,000.  Insisting that they were holding low-risk or “non-sensitive” positions at JPL, their lawsuit contended that NASA had no legal authority to impose the background check requirement, that the background investigations were an unconstitutional search, and that the investigations violated their right to informational privacy.  They sought a preliminary injunction to block such checks.  Their claims were rejected by a federal District judge.

The Ninth Circuit Court, however, ruled for the 28 employees (no class has been certified).  It said they were entitled to a preliminary court order against the background checks (rejecting the other legal claims of the scientists and engineers).   In that ruling, the Circuit Court did not finally resolve whether that right actually had been violated, but said the background checks requirement raised “serious questions” about its constitutionality.  The “most problematic” of the system, the Circuit Court said, was the “open-ended inquiries” on Form 42.  Moreover, it said, the inquiries into details of drug treatment or counseling brought NASA’s actions squarely up against the constitutional right of information privacy, and the government’s demand to know that data was not supported by a legitimate interest.

Citing Whalen v. Roe, the Circuit Court said that the Constitution protects “an individual interest in avoiding disclosure of personal matters,” such as sexual activity, medical information, and financial matters. It ruled that the government may compel disclosure of that kind of information if it proved that its use of the data would “advance a legitimate interest,” provided that its actions were “narrowly tailored to meet the legitimate interest.”  Parts of both SF-85 and Form 42 failed that test, it concluded.

The 28 employees, the Circuit Court ruled, could stay in their present positions while the case went forward to a decision on the merits of their challenge.  JPL, it noted, had functioned without any background since NASA first gave Caltech a contract in 1958.

The Circuit Court denied en banc review, over five judges’ dissents.  One of the dissenting opinions said the majority had brought about “an unprecedented expansion of the constitutional right to informational privacy” that “reaches well beyond this case and may undermine personnel background investigations performed daily by federal, state and local governments.”  Another dissenting opinion said that the courts should draw a distinction between government power to collect personal information, and its authority to disclose it.  That opinion also complained that the Supreme Court had not spelled out the scope of the right to informational privacy, leaving lower courts free “to develop the contours of this free-floating privacy guarantee on their own.”

Petition for Certiorari

Without waiting for the case to return to District Court to review the merits of the Caltech employees’ claims, NASA asked the Supreme Court to step in, filing its petition for review on Nov. 2, 2009.  The petition raised two questions: first, whether background check inquiries into counseling or treatment for illegal drug use violated a constitutional right to informational privacy, if the information gathered was to be used only for employment purposes and was promised confidentiality, and, second, whether that right was violated when the government asked references for any adverse information about a job or security applicant, when the inquiry was only for job-related purposes and the results would remain confidential.

The agency sought to describe the case as a narrow one.  “There is no need in this case,” it said, “to determine the scope of a constitutionally-based right to privacy for certain information or the range of governmental actions that may impermissibly interfere with such a right.”  This case, it added, involved a “facial challenge” to specific inquiries on the background check forms, and it argued that that claim was “foreclosed in light of the reduced expectations of privacy in the employment context,” the long-standing use of the two forms at issue, and the protection the federal Privacy Act provides for the information’s confidentiality.

Still, it said, the “ramifications of the decision below are potentially dramatic.  The decision prevents the routine background checks of many government contract employees and it casts a constitutional cloud over the background-check process the government has used for federal civil service employees for over 50 years.” It also said that the Circuit Court ruling was in “substantial tension” with rulings of two other appeals courts, the Fifth and D.C. Circuits, which it said had upheld background probes “similar to or more intrusive” than the NASA process.

The Caltech employees tried to head off Supreme Court review, arguing that the Circuit Court’s ruling arose in a pre-trial setting, and actually made no final decisions on the merits of the information privacy claim.  The factual record in the case, they added, is undeveloped at this point, so there is no way to know how it would come out after a trial.  NASA’s background check system remained intact as of now, the brief in opposition noted.

Resisting the government’s assertion that the case involved a broad “facial challenge” to NASA’s background system, the Caltech staff members said no one previously saw it that way.  The challenge, they argued, was only to NASA’s use of that process against these particular employees — described as “low-risk, long-term employees of Caltech who perform contract work for the government.”   They sought an injunction only against background checks of JPL employees who hold non-sensitive jobs, the brief said.

On the merits, the employees’ brief said there is nothing in federal law that requires agencies to conduct background probes of contract employees.   Federal agencies, it added, are required only to adopt a uniform standard of ID credentialing to control access to federal facilities.

The Supreme Court, however, examined the case at only a single Conference, and promptly granted review on March 8.  Among the factors that could have contributed to the Court’s willingness to step in without hesitation, two stand out: first, the government’s argument that the Caltech employees had made a facial challenge — the kind of constitutional complaint that a majority of the present Court seeks to discourage, and, second, the strong words of the Ninth Circuit dissenters that the constitutional right of information privacy had been broadly expanded and expressing a need for the Supreme Court to impose some restraint on lower courts in this field.

Merits Briefs

NASA’s brief on the merits, filed May 20, sought to persuade the Court that its two 1977 decisions recognizing a constitutional right of informational privacy had actually put “important limits” on that right.  It interpreted those decisions are drawing a distinction between government collection of personal information, which it said governments routinely do as employers and in other roles, and the prospect of public disclosure of intimate information.

All that is stake in the NASA case, it added, is collection of information.  The government, it noted, has “far broader powers” when it is acting in the role of employer than when it is using its sovereign powers, quoting from prior Supreme Court precedent.  Moreover, it said, the government has wide powers as the proprietor of its facilities, such as JPL.   At JPL it added, it is clear that NASA is collecting information only for use for employment-related purposes.

Challenging the Circuit Court’s ruling against the drug treatment question on the inquiry forms, the NASA brief said that not all questions involving medical treatment implicate privacy concerns.  The government, it said, has a strong interest in knowing whether a recent drug abuser has been rehabilitated.  The Circuit Court’s complaint about Form 42’s sweep, the brief contended, was not linked to “any recognized private area.” Moreover, it went on, someone seeking a job under a federal contract “has no constitutionally protected interest in preventing the government from asking designated references for information about or impressions of him.”

After failing to distinguish between collection and disclosure of information, the Ninth Circuit, according to the government brief, compounded the error “by failing to account for the fact that this case arises in the employment context.”  Other federal circuits have rejected the kind of challenges mounted here, it concluded.

The Caltech scientists and engineers, in their merits brief filed on August 2, sought early in the document to dispel any national security threat that the Justices might sense was in the case.  They said that they have “low-risk” jobs under criteria developed by NASA “to evaluate the risk factor for each JPL employee”; none of them, it added, works on classified material, has access to any “mission ground data system,” is involved in “the design of mission information technology system security,” or has “unsupervised ability to send commands to spacecraft.”  Much of their work, they added, “involves mathematical analysis of data or theoretical calculations, using software in the public domain and requiring nothing more than a desk, a computer, a pencil, a sheet of paper, and a calculator.”

Each of them, the brief continued, was checked out for initial employment through “standard criminal background checks and employment reference checks.”  NASA, it added, has never suggested a need for additional background investigations of its JPL staff.

On the merits of the constitutional claim, the Caltech employees said the Circuit Court merely followed the “broad consensus” that has developed among the lower courts to protect confidential medical or psychotherapy information.  The wide inquiries made to references listed on Form 42, the brief argued, involved “unbounded” probes delving into private sexual matters.  Moreover, it said, such inquiries are not limited to a narrow set of employment-related activity.  NASA itself, the brief said, has listed sexual factors that it considers related to a worker’s “suitability,” including homosexuality, cohabitation, adultery, mental or psychiatric issues.  “Prying into such personal matters would clearly implicate private interests,” it said.

On the scope of the constitutional right at issue, the Caltech workers’ brief said that right is not threatened only by public dissemination of private information.  Neither of the Supreme Court’s two 1977 precedents, the brief argued, drew such a bright-line distinction.  And, it went on, the lower courts have not understood those rulings in such a narrow fashion, instead focusing on “intrusive government collection of sensitive private information,” even if there were no later public release of the data.

Moreover, the workers’ brief said, the government has failed even to discuss the problem posed for privacy by data breaches of sensitive information held by the government.

To the government argument that its powers as an employer should dictate the outcome, the workers argued that they are not employees of the government, but of Caltech.  But, even if they were considered government employees, such workers do not lose heir constitutional rights when they take a federal job, the brief noted.

NASA’s side in the case is supported by a group of companies that engage in background screening, as well as trade groups made up of such companies.  That amici brief argued that the asking of open-ended questions — the practice that the Circuit Court said was most problematic — is a routine and necessary part of any “prudent application process.”

The Caltech scientists and engineers are supported by civil liberties groups, information privacy advocates, groups advocating treatment options instead of law enforcement responses to addiction, scientists, and employment lawyers.  Among the arguments these groups make, a central one is that the government, starting from a post-9/11 concern about the use of fraudulent IDs to gain access to sensitive facilities, has moved into a sweeping intrusion into the private lives of private employees who do not even work in sensitive situations or positions.  Another key argument in these amici briefs is an attack on the government division of information privacy into distinct elements of collection and dissemination, with only the latter being the object of the privacy right.


A fact of potentially surpassing importance in this case is that it will be decided by an eight-member Court.  Justice Elena Kagan is staying out of the case; as U.S. Solicitor General, she filed NASA’s petition for review.  That raises the prospect of a 4-4 split, which would uphold the Ninth Circuit’s ruling without an explanation — a result that the Court’s more conservative Justices will be likely to resist strenuously, especially in the wake of the strong dissents by conservative judges on the Circuit Court.

One factor that may work in favor of building a five-Justice majority, for at least a partial reversal of the Ninth Circuit decision, is that Justice Anthony M. Kennedy has often been strongly in favor of the government’s power to deal with the illegal use of drugs.  One of the central complaints of the Caltech scientists and engineers is that the background checks would lead to probes into drug treatment and counseling; Kennedy may find that challenge a threat to the government’s interest in assuring itself a drug-free workplace.

But, if Kennedy comes to believe that there are serious threats to privacy, in the gathering and maintenance of large digital databases of personal information, he might well be sympathetic to the Caltech scientists and engineers.

In any event, it would be unlikely for the Court to use this case to make sweeping pronouncements on the scope of the constitutional right of informational privacy.   The case very likely can be decided without doing so — as the government has suggested.   The government, though, has made a strong pitch to confine the informational privacy right to one focused on potential dissemination, not on collection, of sensitive private data.  That, in itself, would be a broad ruling.

The prospect of a 4-4 split in the case does suggest that the Court may attempt to decide it on the narrowest possible ground, in order to draw the votes of a clear majority of the Justices in order to get a definitive result.  Among the narrower approaches would be to focus upon the government’s powers as employer. It also could give its own narrower interpretation of the breadth of the inquiries NASA makes, suggesting — at least by implication — that perhaps the inquiries might be re-worded to have less scope. And, the Court might accept the government’s view that this lawsuit does, in fact, amount to a “facial challenge,” and send it back for a potential trial on an as-applied claim, confined to the JPL employees alone.