U.S. Supreme Court Scrutinizes NASA Background Checks in Privacy Case

The U.S. Supreme Court ?considered whether NASA can conduct intensive employee background checks without violating constitutional privacy rights during oral arguments today (Oct. 5) from the space agency and concerned scientists.

The 28 plaintiffs in the case are government contractors ? engineers and scientists at NASA's Jet Propulsion Laboratory at the California Institute of Technology in Pasadena, Calif. The scientists object to what they claim are unrestricted and intrusive background checks.

Supreme Court justices heard arguments from both sides and questioned whether the federal government could justifiably look into certain aspects of an employee's private life. A transcript of the proceeding was released to the public earlier today.

The government's side

Acting Solicitor General Neal Katyal, representing NASA and the federal government, argued that background checks are a part of the standard employment process and include safeguards that ensure they do not violate constitutional privacy interests.

"Background checks are a standard way of doing business," Katyal said before the Supreme Court, according to a transcript released today. "The Government has required them for all civil service employees since 1953 and for contractors since 2005."

Justices Sonia Sotomayor and Samuel Alito probed the boundaries of the background checks, inquiring whether employees could be asked questions about such topics as their genetic make-up, sexual practices or medical conditions.

The JPL scientists argue that their work is low-risk, unclassified and does not require security clearance. In their lawsuit, stemming from a 2004 NASA rule, the scientists claim that the background investigations violate their rights under the First, Fourth and Fifth Amendments and the Federal Privacy Act.

The plaintiffs said in an earlier statement that they do not challenge the government's right to perform comprehensive background checks when necessary, but that it is not necessary for unclassified work that does not threaten national security.

But Katyal argued that the questions involved in the background investigations are justified on the grounds of national security, because the credentials given to contractors allow them access to various NASA facilities, including those that house sensitive information and technology.

"It's such an important credential that it would allow them to get within, for example, 6 to 10 feet of the space shuttle as it is being repaired and readied for launch," Katyal said. "So this is a credential not just for JPL and getting onto JPL, but other places as well."

He stated that there are adequate safeguards under the existing law to prevent improper disclosure of the information garnered from these investigations.

Employees fight back

Attorney Dan Stormer, who is representing the JPL scientists, questioned the limits to the government's power to delve into the lives of its employees.

"The issue as now characterized is really how far may a Government go, may this Government go, to intrude into the private lives of its citizens," he asked, "both in positions that do not involve sensitive issues, classified issues, national security issues or positions of public trust?"

The controversy began in 2004, during the term of then-NASA chief Sean O'Keefe, when NASA ordered all scientists working at JPL to undergo comprehensive, open-ended background checks ? beyond the standard pre-hiring reviews for federal employees ? or risk losing their jobs.

NASA maintains it was following an executive order from President George W. Bush, who issued the rule to tighten security following the terrorist attacks of Sept. 11, 2001. Yet Bush's original order did not mention background investigations; the staff at NASA headquarters added them later.

Other departments covered by Bush's tightened rule, such as the Department of Energy, did not institute similar checks for scientists doing unclassified research, the NASA scientists say. Agreeing to these background checks would hand the government free rein to investigate every aspect of their lives, including their financial and medical records, they argue.

In 2007 the JPL scientists sued NASA to challenge the background checks as illegal, unjustified violations of their privacy. On Oct. 3, 2007, the Federal District Court in Los Angeles dismissed the suit. Two days later the U.S. 9th Circuit Court of Appeals agreed with the scientists and issued an emergency injunction that stopped the checks.

The federal government appealed, and the Supreme Court agreed to hear the case. A decision is expected early next year.

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