Supreme Court grapple with NASA’s need for background checks versus employee privacy

Supreme Court grapples with NASA privacy questions

WASHINGTON — Weighing privacy vs. security after 9/11, the Supreme Court seemed unwilling Tuesday to stop federal investigations into the private lives of people who want to work at government installations — even those who don’t have security clearances and don’t work on secret projects.

The high court heard arguments from government contractors who work at the NASA Jet Propulsion Laboratory and are fighting the government’s request that they submit to what they call intrusive background checks in order to keep their jobs.

The court’s decision, expected later in the term, could have ramifications far beyond NASA. Neal Katyal, the acting solicitor general, told justices that the same questions the contractors were objecting to are also used to investigate full- and part-time government employees throughout the government.

“It’s a big government,” said Chief Justice John Roberts, who added that the government can’t be expected to individualize background checks to avoid asking questions one person might find intrusive while another might not.

But with “low-risk or no-risk employees, the government doesn’t need to know,” said Dan Stormer, who represents 28 scientists and engineers who work at the 177-acre campus east of Los Angeles.

You don’t know someone’s a “low-risk employee until you find out what he or she is like or what the neighbor thinks,” Roberts said. “Well, you know, he keeps practicing planting bombs or something. I mean, then he becomes a high-risk employee. You don’t know until you get the information. That’s the reason you ask for it.”

The Jet Propulsion Laboratory, or JPL, is NASA’s premier robotics lab, famous for sending unmanned spacecraft to Mars and the outer solar system. Unlike other NASA research centers, it’s run by the California Institute of Technology. Lab scientists, engineers and staff are Caltech employees, but the campus and its buildings are owned by NASA.

None of the JPL workers who sued work on classified projects or have security clearances, though several are involved in high-profile missions, including the twin Mars rovers and the Cassini spacecraft studying Saturn and its moons.

Employees said the agency was invading their privacy by requiring investigations that looked into their medical records and asked friends about their finances and sex lives. If the workers didn’t agree to the checks, they were to be barred and fired.

The questions encroached on the employees’ “liberty to control information about oneself … without government intrusion,” Stormer said.

In addition, Stormer insisted that JPL has a college-campus atmosphere, with access granted to outsiders with a simple telephone call from inside the facility to the security gate.

“Does al-Qaida know that?” Justice Antonin Scalia asked.

The government has been doing background checks on all civil service employees since 1953 and for contractors since 2005, Katyal said.

In 2007, NASA extended background checks for federal employees to its contract workers in response to a presidential directive that ordered government agencies to tighten security at facilities and computer systems by issuing new identification badges for millions of civil servants and contractors.

This directive was part of the government’s response to the al-Qaida terrorist attacks on Sept. 11, 2001, that killed thousands of Americans in New York, Pennsylvania and Virginia.

A federal judge originally refused to stop NASA’s background checks while the lawsuit made its way through the courts. He was overturned by the San Francisco-based appeals court.

Katyal argued that the JPL security badges are more valuable than Stormer portrayed, because they allow badge holders access to other NASA facilities and can even allow those workers to come within 10 feet of the space shuttle while it is being repaired.

Justices were concerned about how far the government’s investigations can go. Justice Sonia Sotomayor asked if genetic makeup was fair game, and Justice Samuel Alito brought up diets and sexual practices.

“You would say there is no right of any kind for a citizen to tell the government: That is none of your business,” Roberts said. “The government will decide that it can ask anything of a citizen, so long as you don’t disclose it?”

Not “in the employment-proprietor context,” said Katyal, who assured justices that privacy laws prevent the government from revealing the information collected.

“There is no decision thus far that has recognized any constitutional limit on the government’s collection of information, so long as there are accompanying safeguards on the dissemination,” Katyal said.

He also said the government cannot ask so specifically about sexual and other practices that it infringes on an employee’s constitutional rights. “If the government were collecting information, Justice Alito, on sexual practices of its employees, it may burden the exercise of other rights,” Katyal said.

But sometimes, open-ended questions are needed to ensure that the person is suitable for the job, Katyal said. “That’s how law clerks are hired, how baristas at Starbucks are hired,” Katyal said.

And “we do have a legislature that can place limits on what the government can ask,” Scalia added.

The contractors pointed to a chart that showed up on NASA’s website about the criteria for employment decisions. Some of the factors that showed up on that chart to be considered in deciding whether to hire someone included carnal knowledge, sodomy, indecent exposure, homosexuality, cohabitation, adultery and illegitimate children.

Katyal, when asked about the chart by justices, said “NASA does not and will not use” that chart when it comes to making employment decisions.

Justice Elena Kagan recused herself from this case because she worked on it as solicitor general before joining the high court.

The case is NASA v. Nelson, 09-530.