High Court Mulls Scope of|NASA Background Checks

WASHINGTON (CN) - The Supreme Court on Tuesday considered whether the government can ask about the drug counseling or treatment and general behavior of contracted employees in background checks without violating their privacy rights.

The case stemmed from NASA's request in 2007 that 28 Caltech employees working at the Jet Propulsion Laboratory in Pasadena, Calif., submit to a standard government background investigation. The employees said two portions of the background check -- a question asking whether they had undergone counseling or treatment for drug use in the past year and an open-ended question directed to an employee's references about an employee's general behavior and conduct -- violated their constitutional right to privacy.

The 9th Circuit enjoined the required background checks, and the government appealed.

Acting Solicitor General Neal Katyal argued that background checks were the government's "standard way of doing business," not "roving checks on random individuals." He said they have been required for civil service employees since 1953 and for contractors since 2005.

Katyal said the government, acting as employer, was authorized to collect information with accompanying safeguards under the Privacy Act of 1975. It "goes to the heart of what the government does all the time," he said.

Katyal cautioned that upholding the 9th Circuit's injunction would create a "how-to manual" for potential litigants to challenge a myriad of questions contained in background checks.

"It doesn't just reach drug treatment," he said.

He argued that the court should define the case narrowly and not confront the constitutional right to privacy to determine the "outer limits" of what information the government can request, but rule like it did in Whalen v. Roe, acknowledging a right to informational privacy, but allow the government, as employer, to collect information so long as there are safeguards on its disclosure.

When Justice Samuel Alito asked if an employer could ask an employee about his or her diet, entertainment choices or sexual practices, Katyal said the government could not ask a question if it burdened some other constitutional right.

The government objects to the 9th Circuit's establishment of a "free-standing right to constitutional privacy" that could prevent it from asking questions despite safeguards, Katyal said.

Dan Stormer, attorney for the 28 lab employees, said the background checks intruded on the employees' constitutional right to informational privacy.

Stormer said the background check questions deprived the employees of their liberty to control information about themselves, a violation of the Fifth Amendment.

Alito said he did not see an alternative to the government asking open-ended questions that could help determine the suitability of an applicant. How else, he asked, could the government discover that a NASA snack bar employee has a sign in his front yard that said, "I hope the space shuttle blows up," besides putting a specific question on the form, "Does this individual have a big sign on his front lawn that says 'I hope the space shuttle blows up?'"

Stormer said the government should only ask questions on a "justifiable, need-to-know" basis, not questions about "general behavior or conduct" and "other matters."

"It's a big government," Chief Justice John Roberts said, "and they can't tailor every inquiry, every form, to the individual applicant."

"It can," Stormer argued, saying that if out of 70,000 inquiries into contracted employees over the past five years, only 128 issues arose, then more than 69,000 people "had to give up information that otherwise they would not have to give up."

He said the forms could be better tailored to the security nature of the positions.

"It's a standard form," Roberts said. "The government has to do things in a standard way."

Stormer said the Jet Propulsion Laboratory employees were labeled by the government as low-risk, meaning that even if they misused their positions, it would have little or no impact on the agency's mission.

Roberts suggested another definition of low-risk employee.

"You don't know if it's a low-risk employee until you find out what he or she is like or what the neighbor thinks," he said, adding that someone practicing planting bombs "becomes a high-risk employee."

Katyal argued that even low-risk employees could get within 6 to 10 feet of a space shuttle as it is being readied for launch.

Stormer said he did not know if that were true, but emphasized that the employees did not have access to sensitive information and had worked at the lab in many cases for 20 to 30 years. He said the background checks were part of a "badging procedure" for a facility with a "campus atmosphere," in which an AAA employee or a supply delivery truck could drive up to the gate and be let in with no problem.

"Does al-Qaida know this?" Justice Antonin Scalia asked, drawing laughter.

Justice Elena Kagan, the high court's newest member, sat out of the hearing. Kagan recused herself from eight of the first 12 cases in this session due to her participation in the cases as solicitor general.

The case is NASA v. Nelson, 09-530.

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