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Supreme Court debates privacy rights of government contractors

By Bill Mears, CNN Supreme Court Producer
  • The case involves NASA workers from the California Institute of Technology
  • The justices probe the boundaries of government background checks
  • Kagan recuses herself due to prior involvement as solicitor general

Washington (CNN) -- In a spirited hour of oral arguments dealing with background security checks, the Supreme Court expressed limited sympathy Tuesday for the privacy rights of some government workers.

A majority of justices offered varying support for the government's right to conduct what it calls "mere collection of information with accompanying safeguards" for current and prospective employees, especially in sensitive or high-security workplaces.

The court is reviewing a lawsuit by 28 long-term scientists, engineers, and others at NASA's Jet Propulsion Laboratory near Pasadena, California. The workers, who are independent contractors, claim the mandatory checks are overly intrusive -- permitting the government to obtain information on their health, finances, personal habits, and even their sex lives. All were classified as "low risk," unlikely to have a major "adverse impact" on the agency's mission.

"Whenever the government comes and says, 'This is for your own good,' you have to be a little suspicious," Chief Justice John Roberts said about the need for worker investigations.

"It seems to me." Justice Anthony Kennedy said, "that for a sensitive position -- a bank who has its employees taking care of other people's money, or the medical profession -- that the employer could be sued and would be remiss if it did not ask this question" about sensitive topics.

"This is done all the time," he said.

Missing from the debate was the newest justice, Elena Kagan, who was a no-show at this and the two other cases being argued Tuesday. She is recusing herself from eight of the 12 cases scheduled during this initial, two-week session and from 25 cases so far this term.

Kagan was the Obama administration's solicitor general before being nominated to the bench, and has withdrawn from participation in appeals where there might be a conflict of interest. As solicitor general, she had been involved earlier this year in preparing briefs and legal strategy for the worker privacy case.

At issue is whether there is a constitutional right to "informational privacy," free from overly intrusive state scrutiny. The high court 33 years ago suggested such a right existed, but the concept has rarely been tested since. The latest dispute comes amid a general increase in security concerns in the wake of the September 11, 2001, terrorist attacks.

The plaintiffs in the case argued Tuesday that they are not federal employees, but work at the California Institute of Technology, a private university that operates the JPL for the space agency. They claim they are "low-risk" workers whose work is in the private domain, and that the university already conducted background checks when they were first hired.

Nevertheless, they were required to submit information to NASA, allowing the facility to maintain its broader security clearance as a government contractor. Under a 2004 presidential directive, NASA and all federal agencies were ordered to increase their security measures. All civil servants and contractors are now issued special ID badges and cards after first undergoing fingerprint checks and thorough screenings of their professional and personal lives.

Investigators are permitted to read criminal, financial and medical records, and speak with friends, family, and neighbors of the workers. All federal employees and applicants are subject to such background checks, and the government says that applies to contractors as well.

After some JPL workers complained, the lab posted a "suitability matrix" on its Web site, listing criteria it believed NASA would consider when deciding suitability for future and continued employment. Such factors, the lawsuit noted, included "carnal knowledge, sodomy, indecent exposure, voyeurism, obscene telephone calls, indecent proposals, incest, bestiality, homosexuality, cohabitation, adultery, illegitimate children, and mental, emotional, psychological, or psychiatric issues."

Oral arguments explored the outer boundaries of the government ability to conduct background checks, using some imaginative hypothetical situations.

"Could you ask somebody, 'What's your genetic make-up, because we don't want people with a gene that is predisposed to cancer?'" asked Justice Sonia Sotomayor.

"This is a bit unsatisfying," she later told the Justice Department's Neal Katyal. "Because you start by saying to us, as long as there are some nondisclosure protections, then virtually any question, whether it impinges a fundamental right or not, would be OK, because I don't even know what the government's interest is in asking every question it wants to. There has to be a need for a set of questions, doesn't there?"

Katyal replied Congress has the authority to limit the scope of the questions on a standard employment questionnaire.

"Those questions," he said, "are really the heart of the form. Those are in many ways the most important questions, because they're the ones that employers have to ask because they don't know the weaknesses in an individual applicant's background."

Justice Samuel Alito appeared unconvinced.

"Is there any limit?" Alito asked. "Suppose the government says: 'Well, we want to know all about your diet. We want to know whether you smoke cigarettes. We want to know everything you read. We want to know what your hobbies are, what forms of entertainment you enjoy, sexual practices, every aspect of your private life, just because that gives us a better picture of who you are as an employee.' Is that OK?"

Katyal said there are limits, but added the government should have wide discretion to determine specific areas of inquiry.

Arguing for the JPL workers, attorney Dan Stormer said the government went too far.

"In those situations where there are sensitive issues, you are allowed to inquire based on the need," he said. "But here, they are inquiring of the snack bar worker, the bus driver, the gift shop operator," and treating long-term trusted employees the same as prospective hires.

"Are you then saying that these people have to be grandfathered or grandparented because they worked for 20 years?" asked a skeptical Justice Ruth Bader Ginsburg. The revised NASA policy was begun in 2007, affecting all current workers, even those holding security clearances.

"What's the alternative to acquiring that information through an open-ended question?" asked Alito. "Do you have to have a specific question on the form that asks: Does this [low-level snack bar worker] have a big sign on his front lawn that says, 'I hope the space shuttle blows up,' " something Alito said the government would definitely be interested in knowing about, whatever the worker's job responsibilities.

Last term, the high court ruled that a government worker did not enjoy a "reasonable expectation" of privacy on his official wireless two-way text-messaging pager.

A California police officer had sued after authorities reviewed his phone records because of what they believed was excessive use of the pager device on the job. The review found hundreds of personal messages, some of a "sexually explicit" nature, to his wife, girlfriend and a fellow officer. The officer then sued for invasion of privacy, but lost at the high court.

Private employees generally have less workplace privacy than do government workers. The JPL case raised the question of rights enjoyed in the quasi-official world of government contractors.

In the JPL dispute, workers who refused to allow the checks could be fired. The government told the high court that anyone receiving a government employment check should expect a security check. Justice Department lawyers warned that a ruling against the government would jeopardize its ability to obtain necessary information from contractors and regular government staff.

A ruling is expected in the next few months. The case is National Aeronautics and Space Administration v. Nelson (09-530).