January 19, 2011

Supreme Court Decides National Aeronautics and Space Administration v. Nelson

On January 19, 2011, the Supreme Court decided National Aeronautics and Space Administration v. Nelson, No. 09–530, holding that, even if government contractors have a constitutional right to informational privacy, that right does not prevent the government from asking reasonable questions in an employment background investigation subject to safeguards against public disclosure.

The case arose out of a 2004 recommendation by the 9/11 Commission that the President order new, uniform identification standards for federal employees, including contract employees. Plaintiffs were contract employees at NASA's Jet Propulsion Laboratory. At the time they were hired, they were not subject to government background checks. However, after the President followed the Commission's recommendation, the Department of Commerce mandated that contract employees with long-term access to federal facilities complete a standard background check. The background check involved completion of a standard form that asked employees about drug use within the past year. It also required employees to sign a release authorizing the government to obtain personal information about them from schools, employers, and others.

The plaintiffs claimed that the background check violated their constitutional right to informational privacy. The district court declined to issue a preliminary injunction, but the Ninth Circuit reversed. It held that although the inquiries involved in the background check furthered the government's interest in combating illegal drug use, certain questions about drug treatment or counseling posed in the standard form furthered no legitimate interest and thus were likely to be held unconstitutional. It also held that a questionnaire sent to employees' references contained open-ended questions not narrowly tailored to meeting the government's interests in verifying contractors' identities and ensuring facility security and thus also likely violated plaintiffs' informational privacy rights.

The Supreme Court reversed. It acknowledged that it had previously recognized a constitutional interest in "avoiding disclosure of personal matters," and it assumed, without deciding, that the challenged inquiries implicated a privacy interest of constitutional significance. Nevertheless, it held that this privacy interest did not prevent the government from asking reasonable questions in an employment background investigation subject to safeguards against public disclosure.

The Court distinguished between the government as a "proprietor" and the government as a "regulator," and it held that the government has a much freer hand when it collects personal information for purposes of managing its internal operations. It also looked at the history of government background checks, and it held that such history showed that the government had an interest in conducting basic background checks to ensure security of its facilities and to employ a competent, reliable workforce. According to the Court, the plaintiffs' status as contract employees did not diminish this interest. The Court rejected the argument that the government has a constitutional burden to demonstrate that its employment background questions are necessary or the least restrictive means of furthering its interests.

Finally, the Court noted that information gathered during the background check was subject to substantial protections against public disclosure, as provided in  vis- à-vis the Privacy Act. That Act allows the government to maintain only those records "relevant and necessary to accomplish" a purpose authorized by law; requires written consent before the government may disclose an individual's records, and imposes criminal liability for willful violations of its nondisclosure obligations.

Justice Alito delivered the opinion of the Court, in which Chief Justice ROBERTS and Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined. Justice Scalia filed an opinion concurring in the judgment, in which Justice Thomas joined. Justice Thomas also filed a separate opinion concurring in the judgment. Justice Kagan took no part in the consideration or decision of the case.

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