Scientist’s Privacy Worth $10K, Judge Says

SAN FRANCISCO (CN) - The federal government must pay $10,000 to a scientist for telling the man's coworkers that he had been barred from a NASA research facility for taking bribes from a foreign country.

Haiping Su, an American citizen who emigrated from China in 1986, is employed by the Regents of the University of California at Santa Cruz, University Affiliated Research Center (UARC). For a time, he was part of a group working on-site at the NASA Ames Research Center at Moffett Field, Calif., providing support to the earth sciences division.

Su was classified as a "low risk" employee because he worked only with publicly available data. However, after a joint investigation the FBI and NASA determined that Su's presence on NASA property constituted a security risk - partly basing that finding on a polygraph test.

Officials then hand-delivered a disbarment letter to Su and escorted him from the research center. Initially the university also fired Su, although that was rescinded and he was allowed to continue working on the NASA/UARC project from his home under a telecommuting agreement.

Su filed a complaint against the United States under the Federal Tort Claims Act and the Privacy Act for deprivation of privacy, based on the alleged disclosures of the reasons for his debarment to his coworkers and others.

After dispensing with the Privacy Act claims in the government's favor, Su's FTCA privacy claim was tried over five days before U.S. District Court Judge Edward Davila. At trial, testimony revealed that the security chief at the NASA facility told the manager of the UC program that Su had refused to answer one question on the lie detector test.

But while Su had a legally protectable interest in the details of the investigation, he lost his expectation of privacy for the polygraph test results when he confided to his own colleagues that he "did not do well" on the examination, Davila wrote in a summary and conclusion statement issued last week.

Also, that fact that NASA provided a copy of Su's disbarment letter to the university's program manager was not unreasonable since NASA had to offer UARC a reason for revoking its employee's access privileges, Davila found. The letter did not provide any details of the FBI investigation but simply stated that Su's presence constituted a security or safety risk.

Even convening a meeting to fill Su's coworkers in on the disbarment did not violate Su's expectation of privacy, although the security chief should have stopped with simply telling the man's colleagues that he was a security risk.

"Su had been deemed a security risk, and he had many friends and colleagues who still worked at NASA Ames," Davila wrote. "While Su himself did not handle classified or sensitive material, others on the premises did. It was entirely reasonable for NASA to inform the earth sciences division staff that Su was now considered a security risk."

Additionally, the security chief's statement at the meeting that the security risk determination arose out of Su's prior employment is covered by the common interest privilege, the judge said.

"Other scientists and staff that had been working closely with Su understandably were worried about the impact of his debarment on themselves. An explanation that Su's debarment did not arise out of anything he was working on at NASA Ames - and thus did not arise out of anything the remaining employees were working on - falls within the common interest privilege," Davila wrote.

The security chief's mistake - and the violation of Su's privacy - came from suggesting that Su had been banned from the facility for taking money from a foreign government and lying about it, according to the judge's findings.

"Unlike the statements that Su was a security risk and that the debarment arose from his prior employment, the statement regarding a foreign government was not legitimate explanation or advice," Davila wrote. "It was not a statement that would 'preserve morale and job efficiency.' In fact, as described at trial, the statement was delivered rather flippantly. The security chief already had informed the earth sciences division in general terms why Su had been debarred and allayed their concerns that the debarment might have arisen from work they themselves were still performing. The court concludes that there was no legitimate purpose served by revealing that Su had taken, or at least was suspected of taking, money from a foreign government."

Su had claimed that he discovered what the security chief said about him during the meeting when his former coworkers started asking him whether he had taken money from a foreign government. He stated that, as a result, he suffered from anxiety, embarrassment, humiliation, shame, depression and anguish.

So although Su did not lose his job and did not lose any employment-related benefits from the deprivation of his privacy, he can recover damages for his emotional distress, Davila found. But his demand for more than $5 million in damages is not warranted, particularly because Su was unable to separate the mental and emotional distress that he feels as a result of the privacy deprivations from the distress he feels as a result of the debarment.

"Based on Su's testimony, it is apparent that Su would have suffered all the symptoms of which he complains solely because of the debarment, even if the privacy deprivation had never occurred," Davila wrote.

Su did not provide any expert opinion or evidence to show the additional distress he suffered as a result of the privacy deprivation or how the additional distress should be valued. But he did suffer some stress because of the violation of his privacy rights, to the tune of $10,000, Davila concluded.

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