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

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

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

SupremeCourt justices heard arguments from both sides and questioned whether thefederal government could justifiably look into certain aspects of an employee'sprivate life. A transcript of the proceeding was released to the public earliertoday.

Thegovernment's side

ActingSolicitor General Neal Katyal, representing NASA and the federal government, arguedthat background checks are a part of the standard employment process andinclude safeguards that ensure they do not violate constitutional privacyinterests.

"Backgroundchecks are a standard way of doing business," Katyal said before theSupreme Court, according to a transcript released today. "The Governmenthas required them for all civil service employees since 1953 and forcontractors since 2005."

JusticesSonia Sotomayor and Samuel Alito probed the boundaries of the backgroundchecks, inquiring whether employees could be asked questions about such topicsas their genetic make-up, sexual practices or medical conditions.

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

Theplaintiffs said in an earlier statement that they do not challenge thegovernment's right to perform comprehensive background checks when necessary,but that it is not necessary for unclassified work that does not threatennational security.

But Katyalargued that the questions involved in the background investigations arejustified on the grounds of national security, because the credentials given tocontractors allow them access to various NASA facilities, including those thathouse sensitive information and technology.

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

He statedthat there are adequate safeguards under the existing law to prevent improperdisclosure of the information garnered from these investigations.

Employeesfight back

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

"Theissue as now characterized is really how far may a Government go, may thisGovernment go, to intrude into the private lives of its citizens," heasked, "both in positions that do not involve sensitive issues, classifiedissues, national security issues or positions of public trust?"

Thecontroversy 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 forfederal employees ? or risk losing their jobs.

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

Otherdepartments 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 thegovernment free rein to investigate every aspect of their lives, includingtheir financial and medical records, they argue.

In 2007 theJPL scientists sued NASAto challenge the background checks as illegal, unjustified violations of theirprivacy. On Oct. 3, 2007, the Federal District Court in Los Angeles dismissedthe suit. Two days later the U.S. 9th Circuit Court of Appeals agreed with thescientists and issued an emergency injunction that stopped the checks.

The federalgovernment appealed, and the Supreme Court agreed to hear the case. A decisionis expected early next year.

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This story has been corrected to reflect that NASA administrator Sean O'Keefe, not Mike Griffin, was in charge of NASA in 2004. Griffin was named NASA administrator in 2005.