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A unanimous vote today from the Supreme Court. It upheld the government's right to conduct broad background checks on contract employees, even those working in nonsensitive, low-risk jobs.
The Court reversed a lower court ruling, one that had stopped NASA from asking open-ended personal and medical questions about scientists at the Jet Propulsion Laboratory in Pasadena.
NPR's Nina Totenberg reports.
NINA TOTENBERG: 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 9/11, 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 Lab had worked there for decades, and this was the first time they'd 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 part of the background check in court. They cited open-ended questions about medical and financial information, drug and alcohol counseling, personal behavior and mental stability.
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.
Robert Nelson is a senior research scientist at the Jet Propulsion Lab.
Dr. ROBERT NELSON (Senior Scientist, Jet Propulsion Lab): They can ask about who I slept with, who I smoked dope with when I was in college, if I did smoke dope, et cetera. They can ask everything about my entire personal life.
TOTENBERG: And pointing to WikiLeaks, he contends that federal rules barring disclosure of the information are no solace.
Dr. NELSON: They can't keep it private. It's just not the way it happens in the information age.
TOTENBERG: But today, 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 Constitution does, in fact, guarantee a right to informational privacy. But even so, the federal law requiring these background checks of private contract employees does not violate that right.
Alito noted that as far back as the founding of the republic, President Washington investigated the background of candidates for high office. And in 1871, Congress codified such background checks for civil service employees.
In light of this history, he concluded, the government's interest 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.
Alito noted that the Court has, in a wide variety of contexts, said there is a constitutional right to privacy, and twice in the 1970s referred broadly to a constitutional privacy interest in avoiding disclosure of personal information.
In both cases back then, however, the Court upheld what it conceded could be invasions of privacy because of provisions that barred disclosure of the collected information. In today's case, the court did the same thing, 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 results in the case but would have gone further, overruling past court decisions that say there is a right of informational privacy and, by implication, strongly suggesting there's no constitutional right to privacy at all.
Scalia blasted the approach taken by Alito and the rest of the majority, calling it incoherent. To assume that there's an informational right to privacy without deciding the question, he said, harms our image, if not our self-respect, because it makes no sense.
Nina Totenberg, NPR News, Washington.
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