The U.S. Supreme Court has upheld the government's right to conduct broad and sometimes intrusive background checks on employees working for government contractors in nonsensitive, low-risk jobs.
By a unanimous vote, the justices reversed a lower-court ruling that had stopped NASA from asking open-ended personal questions about scientists at the Jet Propulsion Laboratory in Pasadena, Calif.
NASA's Jet Propulsion Lab is run by the California Institute of Technology under a government contract and is staffed exclusively by Caltech employees. This case arose after the Sept. 11 attacks, when President Bush ordered contract employees to be screened with background checks in the same way as government employees.
Many of the top scientists at the Jet Propulsion Laboratory had worked there for decades, and this was the first time they had been subjected to more than the initial check of their academic credentials and work history.
Twenty-eight top scientists — among them lead designers of the Galileo Project and Apollo moon landings — challenged portions of the background check in court. They cited open-ended questions about medical and financial information, drug and alcohol counseling, personal behavior and mental health. The scientists noted that their jobs did not give them access to classified information and contended that these open-ended background questions were so unnecessarily intrusive as to be a violation of their right to privacy.
"They can ask who I slept with, who I smoked dope with when I was in college, if I smoked dope. They can ask everything about my entire personal life," says Robert Nelson, a senior research scientist at JPL.
Pointing to WikiLeaks' release of massive amounts of classified data in government files, Nelson contends there is no solace in the federal privacy law barring disclosure of the information that is collected in background checks.
"They can't keep it private," he says. "It's just not the way it happens in an information age."
On Wednesday, however, the U.S. Supreme Court ruled against the scientists. Writing for himself and five other justices, Justice Samuel Alito said the court was assuming, without deciding, that the U.S. Constitution does in fact guarantee a right to informational privacy. But even so, he said, the federal law requiring background checks of private contract employees does not violate that privacy right.
Alito noted that as far back as the founding of the republic, President Washington investigated the background of candidates for high office. In 1871, Congress codified such background checks for civil service employees.
In light of this history, Alito concluded, the government's "interests in managing its internal operations," combined with federal nondisclosure laws, justify conducting background checks on private contract employees. It is "common sense," he said, "that if every employment decision became a constitutional matter, the government could not function."
"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,' " he said.
Alito noted that the court has, in a wide variety of contexts, said there is a right to privacy and twice in the 1970s referred broadly to a "constitutional privacy interest in avoiding disclosure of personal matters." In those 1970s cases, however, the court upheld what it conceded could be invasions of privacy because of provisions that barred disclosure of the collected information. In the NASA case, the court used the same rationale, relying on provisions of the Privacy Act that bar disclosure of information collected in background checks.
Justices Antonin Scalia and Clarence Thomas agreed with the result in the case but harshly disagreed with the rationale. They said there is no right to informational privacy in the Constitution and, by implication, no right to privacy at all.
Scalia's concurring opinion calls the majority opinion "incoherent" and reads more like a dissent. Classic Scalia, it is full of vivid language, acid sarcasm and biting humor aimed both at his colleagues and at the arguments put forth by the scientists.
"Like many other desirable things not included in the Constitution," he said, "'informational privacy' seems like a good idea. ... But it is up to the people to enact those laws ... and, when they think it appropriate, to repeal them. A federal constitutional right to 'informational privacy' does not exist."
Calling the scientists' arguments "ridiculous," "absurd" and full of "utter silliness," Scalia said that the contract employees in their briefs "never once identified" which provision of the Constitution contained a right to informational privacy. "To tell the truth, I found this approach refreshingly honest," he said. "One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution."
Turning his acerbic pen on his fellow justices, Scalia blasted the approach taken by the majority. To assume there is an informational right to privacy without deciding the question, he said, "harms our image, if not our self-respect, because it makes no sense."