(CN) – The 9th Circuit on Thursday let stand an injunction blocking NASA and Caltech from performing extensive background checks on low-risk employees at NASA’s Jet Propulsion Laboratory in Pasadena, Calif. In one of three dissents, Judge Kleinfeld argued that “no revival of McCarthyism is threatened by allowing as much inquiry for hiring a Jet Propulsion Lab engineer as a barista.”
In 2007, a three-judge panel enjoined the Bush-mandated background checks after determining that the invasive questionnaires raised “serious privacy concerns.”
Homeland Security Presidential Directive 12 required JPL employees to sign a waiver releasing their answers to a detailed, five-page questionnaire that prods into their medical records, finances and sex lives, among other topics.
The 28 engineers and scientists subject to the background checks faced “a stark choice – either violation of their constitutional rights or loss of their jobs,” a three-judge panel ruled in a 2008 decision upholding the injunction.
In August 2007, JPL employees filed a class action seeking to do away with the inquisition, as most employees have worked at the laboratory for more than 20 years, none has access to classified material and all have been declared low-risk employees. But they could have been barred from the lab or fired for refusing to answer the questionnaires.
The full court declined to review the finding last January that the background checks were unnecessarily intrusive.
“[T]he panel’s decision constitutes an unprecedented expansion of the constitutional right to informational privacy,” Judge Callahan wrote in a dissent joined by Judges Kleinfeld, Tallman and Bea.
Judge Kleinfeld‘s dissent enumerated the benefits of open-ended questions for any prospective employer, particularly for a job developing robotic spacecraft.
“Without the open-ended questions,” Kleinfeld wrote, “any employer gets stuck with people who should not have been hired, and even, occasionally, people who are dangerous.”
Judge Kozinski said the constitutional right to information privacy hinges on a sliver of Supreme Court precedent. “It’s a bit like building a dinosaur from a jawbone or a skull fragment, and the result looks more like a turducken,” he wrote.
But Kozinski pointed out that the applicants could simply choose not to fill out the questionnaires and look for another job.
“Does being asked to disclose information one would prefer to keep private, in order to keep a government job to which one has no particular entitlement amount to a constitutional violation?” Kozinski asked.
“If the answer is yes, then the government commits all manner of constitutional violations on tax returns, government contract bids, loan qualification forms, and thousands of job applications that are routinely filled out every day.”
In a concurring opinion, Judge Wardlaw picked apart the criticisms of the dissenting judges.
“Our opinion is actually much narrower than Judge Callahan would have her audience believe,” Wardlaw wrote.
“Judge Kleinfeld belabors the usefulness of open-ended questions … but misses the distinction between that necessary practice and the standardless and limitless mining of highly personal and employment-irrelevant data from third parties at issue here,” the judge added.
Wardlaw called for further record development on the issue of information privacy, saying she awaits the next round. Judges Pregerson, Reinhardt, W. Fletcher, Fisher, Paez and Berzon joined the concurring opinion.