“Reasonable investigations of applicants and employees aid the government in ensuring the security of its facilities and in employing a competent, reliable workforce,” said the opinion written by Justice Samuel Alito. That the workers who sued the government on privacy grounds were contractors and not civil servants was a formality and all but irrelevant, Alito wrote.
The case was brought by 28 scientists and engineers at NASA’s Jet Propulsion Laboratory near Pasadena The sprawling facility is operated by the California Institute of Technology. The plaintiffs are employees of Caltech.
All of the contractors had worked at the lab for years, participating in such projects as the Mars rover. While they had all been vetted prior to first working at the lab, they had not been subjected to the more rigorous checks undergone by government workers.
Following the 9/11 attacks, President Bush ordered security checks extended to anyone working on government funded projects. The scientists and engineers balked at questions about their relationships, drug use and drug treatment, and mental health counseling.
They sued. In addition to arguing they were not government workers and therefore not subject to the same requirements, they pointed out they did not work on sensitive security projects, and that the questions violated their right to privacy.
When the 9th Distinct Court of Appeals ruled in their favor, the government appealed to the U.S. Supreme Court.
In the decision, joined by five of the nine justices, Alito said “Like any employer, the Government is entitled to have its projects staffed by reliable, law-abiding persons who will ‘efficiently and effectively’ discharge their duties.”
Alito also discounted the potential the background information might be leaked publicly calling it a “remote possibility,” which “does not undermine the Privacy Act’s substantial protections.”
Significantly, Alito’s opinion says, “We assume, without deciding, that the Constitution protects a privacy right,” but noting, “the challenged portions of the Government’s background check do not violate this right in the present case.”
Although the wording specifically avoids flatly declaring a right to privacy, it certainly is a signal that six justices at least may be open to such a ruling. This wording is very likely to form the basis of future Supreme Court arguments, and is something for employers to consider in conducting or hiring background checks.
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It was over this issue that the Court split.
Concurring in the result, Justices Antonin Scalia and Clarence Thomas wrote their own opinions. Both challenged Alito’s assumption of a right of privacy rooted in the Constitution. Scalia said in his opinion that “A federal constitutional right to ‘informational privacy’ does not exist.”
His is a pretty hot opinion, full of jibes at the majority view, and with language, which, for the Supreme Court, approaches intemperance: “The Court decides that the Government did not violate the right to informational privacy without deciding whether there is a right to informational privacy,and without even describing what hypothetical standard should be used to assess whether the hypothetical right has been violated.”
In another section he writes:
“Respondents claim that even though they are Government contractor employees, and even though they are working with highly expensive scientific equipment, and even though the Government is seeking only information about drug treatment and information from third parties that is standard in background checks, and even though the Government is liable for damages if that information is ever revealed, and even though NASA’s Privacy Act regulations are very protective of private information, NASA’s background checks are unconstitutional. Ridiculous.”
Thomas concurred in Scalia’s opinion, adding a one paragraph opinion of his own saying the same thing.
Justice Elena Kagan did not participate in the decision.