NASA privacy case reaches the Supreme Court

Twenty-eight Caltech scientists brought suit in 2007 against NASA’s Jet Propulsion Laboratory (JPL) for what they consider to be excessive background checks; that suit reached the Supreme Court today after an appeal by Attorney General Eric H. Holder Jr.

The scientists, who first took NASA to court three years ago, have won nearly every battle in the lower courts against the new security checks implemented by NASA on behalf of the Bush administration. In testimony heard today, however, it looks like some members of the Supreme Court will vote in favor of the government.

An odd occurrence

The case started with Homeland Security Presidential Directive 12 , which stated that all employees at federal facilities, including contract workers, must undergo background checks by the end of 2007.

Most federal agencies requested a fingerprint and a few other pieces of information for a background check. NASA, however, had taken a stricter interpretation of the directive.

The space agency required all employees and contractors to disclose where they have lived; their school, medical, bank, and criminal records; previous employment; and illegal drug use over the past five years.

Employees also had to waive their privacy rights and give permission for the government to obtain additional information about them from other sources—or be fired.

Although many NASA workers complained about the checks, only the JPL staff took legal action against the laboratory.

According to JPL physicist Robert Nelson , who is one of the plaintiffs, NASA’S version of HSPD-12 is unduly invasive and “is an invitation to an open-ended fishing expedition.”

HSPD-12 violated the plaintiffs’ right to hold personal information private, said Nelson, and constituted an unreasonable search under the 14th Amendment .

Another plaintiff, Dennis V. Byrnes, writes in the LA Times :

The Supreme Court

The federal government had lost the previous two rulings—the last of which found overwhelmingly for the JPL employees. The Supreme Court, however, usually sides with the government on matters of national security.

Justice Elena Kagan recused herself from the hearing, citing a conflict of interest, as she previously acted as solicitor general for the government in the case.

To overturn the lower courts, at least five justices must vote in favor of the government; a 4–4 tie would keep valid the lower courts’ decision in favor of the JPL workers.

Acting solicitor general Neal Katyal used two main arguments in asking the Court to overturn the ruling: that the questions are standardized across the government—a point that Chief Justice John Roberts appeared to favor—and that JPL security badges are a security risk, since they allow badge holders access to other NASA facilities.

Justice Samuel Alito hypothetically said that a NASA applicant might have a yard sign proclaiming a wish for the space shuttle to blow up: “I don’t see how you’re going to get that information without asking open-ended questions.”

But with “low-risk or no-risk employees, the government doesn’t need to know,” said Dan Stormer, who represents the JPL workers.

Stormer pointed out that JPL, through its association with Caltech, has more of an academic “college-like campus” feel than a traditional NASA research center; inside JPL, a simple phone call to the front gate could grant access to outsiders.

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

“It wouldn’t matter,” Stormer replied. The researchers are engaged in open-source, nonsensitive science, he said.

A point of note

Although Scalia, Roberts, and Alito seemed to favor the government’s request, they did express some concern over the potential intrusiveness of the investigations.

Roberts specifically asked whether there is any right for citizens to tell the government that their personal lives are “none of your business.”

Not “in the employment context,” said Katyal, who promised that the data collected would not be made public.

The infamous chart that was on JPL’s internal website to describe situations in which someone could be fired, including a “pattern of irresponsibility as reflected in credit history ... sodomy ... incest ... abusive language ... unlawful assembly,” and under certain situations homosexuality, was used by Stormer as part of his brief.

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

Paul Guinnessy