Concerning Informational Privacy for Federal Contract Employees
The Supreme Court ruled that the government did not violate an employee’s privacy rights when it performed intrusive background checks in its role as an employer. Justice Alito’s majority opinion found that whatever the scope of the constitutional right to personal privacy, it did not prevent the government from investigating employees. Acting as an employer, the government had a legitimate interest in asking open-ended questions regarding past criminal history, drug use and other sensitive issues. Additionally, the Privacy Act provided sufficient protection from public disclosure of this private information. The Court stated that the fear of a data breach or other unintentional public disclosure of private information was not, by itself, proper grounds for challenging government collection of that information. Justice Scalia concurred in the judgment, arguing that the case could be easily decided because a “federal constitutional right to ‘informational privacy’ does not exist.”
(1) Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee’s response is used only for employment purposes and is protected under the Privacy Act.
(2) Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility, the reference’s response is used only for employment purposes, and the information obtained is protected under the Privacy Act.
The issue presented in Nelson is whether federal contract employees have a constitutional right to keep some personal information private when undergoing a background check. Contract employees (Plaintiffs), including scientists, engineers and administrative support personnel at the Jet Propulsion Laboratory (JPL), filed suit against the National Aeronautics and Space Administration (NASA), the California Institute of Technology (Caltech), and the Department of Commerce on August 30, 2007.
The Plaintiffs alleged that the Government’s new requirement that all employees and contractors with “long-term access to federal facilities” submit to in-depth background investigations violated the Administrative Procedure Act, their constitutional right to informational privacy, and the Fourth Amendment. The Plaintiffs were employed by Caltech, and were not government employees. Rather, they were “low risk” contract employees that did not work with classified material. Caltech operates the JPL pursuant to a contract with NASA.
The new background check policy requires every JPL employee to submit to a National Agency Check with Inquiries (NACI), which is the same background investigation required of government civil service employees. An individual subject to the NACI must complete a form that asks for (1) background information, including residential, educational, employment and military histories, (2) the names of three references that “know you well,” and (3) disclosure of any illegal drug use within the past year, along with any treatment or counseling received for such use. All of this information is then checked against four government databases. The individual is also required to sign an authorization form allowing the government to collect further information, including soliciting “any adverse information” about the applicant from the applicant’s references, employers and landlords. Such information may include “violations of law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.”
NASA civil servant employees, but not its contract employees, have been required to complete the NACI since 1958. However, the President issued an order in 2004 requiring that all federal employees, including “contractor employees,” submit to uniform testing. Such requirements became applicable to JPL employees on January 29, 2007. Caltech initially opposed the change, but was forced to comply based on its contract with NASA. On its own accord, Caltech made it a policy that all employees who did not submit the NACI would no longer be employed.
The Plaintiffs moved for a preliminary injunction on September 24, 2007, seeking to avoid termination for not complying with NASA’s requirements by October 5, 2007. The lower court denied the motion, finding statutory support for the background investigations in the Space Act of 1958, which allowed NASA to establish requirements as deemed “necessary in the interest of national security.” The court further found that NASA’s form was narrowly tailored to further the government’s legitimate security interest. Lastly, the court did not find that the investigation was a “search” under the Fourth Amendment.
In response, the Plaintiffs filed an emergency motion to stay the order, and the U.S. Court of Appeals for the Ninth Circuit granted a temporary injunction. The Ninth Circuit found that the information sought raised serious privacy concerns and that it was questionable as to whether the forms were narrowly tailored to meet a legitimate government interest. The Ninth Circuit also found that because Plaintiffs were not “sensitive” employees, but “low-risk” employees, the NASA did not have authority over them under the Space Act. Additionally, the court found that the questions on NASA’s form implicated informational privacy rights because the questions were “open-ended,” and “designed to elicit a wide range of adverse, private information that ‘is not generally disclosed by individuals to the public.'” 512 F.3d 1134, 1145. However, the court did agree that the government’s actions in this instance were not “searches” within the meaning of the Fourth Amendment.
Shortly after it issued its decision, the Ninth Circuit vacated its opinion and filed a superseding one. In the superseding opinion the court held that the Space Act did grant the NASA authority to require the investigations at issue. However, the court still held that plaintiffs could move forward with their informational privacy claims, finding that questions asking about treatment and counseling received for drug treatment in the questionnaire and the written inquiries submitted to third parties “require the disclosure of information and each presents a ripe controversy.” 530 F.3d 865, 878.
The Supreme Court previously held in Whalen v. Roe, the Supreme Court recognized the right to informational privacy as, “the individual interest in avoiding disclosure of personal matters.” 429 U.S. 589, 599, 97 S. Ct. 869, 876 (1977). This right was later cited in Nixon v. Administrator of General Services, finding that government officials, including the President, do not wholly give up their constitutional privacy rights in matters of personal life unrelated to acts done in their public capacity. 433 U.S. 425, 457 (1977).
On June 4, 2009, the Ninth Circuit denied a request for rehearing en banc, and the appellees petitioned for a writ of certiorari, which was granted on March 8, 2010. The petition asked the Supreme Court to further define what is included in the right to informational privacy. The petition also asked specifically whether an employee has an expectation of privacy in questions relating to counseling and treatment for illegal drug use or adverse information that may come from references.
The case was argued on October 5, 2010. The Supreme Court issued its decision on January 19, 2011, reversing the Ninth Circuit and remanding to the lower court.
The Supreme Court ruled in NASA v. Nelson that the government did not violate an employee’s right of informational privacy when it performed intrusive background checks. Justice Alito’s majority opinion found that whatever the scope of the constitutional right to personal privacy, it did not prevent the government from investigating employees. Specifically, the Court found that the government had a legitimate interest in asking open-ended questions regarding past criminal history, drug use and other sensitive issues. Additionally, the Privacy Act provided sufficient protection from public disclosure of this private information. The Court stated that the fear of a data breach or other unintentional public disclosure of private information was not, by itself, proper grounds for challenging government collection of that information. Justice Scalia concurred in the judgment, arguing that the case could be easily decided because a “federal constitutional right to ‘informational privacy’ does not exist.”
The Plaintiffs NASA v. Nelson, joined by EPIC and others, argued that the Privacy Act would not sufficiently protect the information collected from JPL contractors from data breach and other threats to their personal information. The Court dismissed these arguments in its 2011 opinion. Then, in 2012 Wired reported that Hackers Seized Control of Computers in NASA’s Jet Propulsion Lab, exposing sensitive files and data. Then, in 2015, the government revealed that the Office of Personnel Management, which collects and stores the sensitive background check files at issue in NASA v. Nelson had been compromised by a sophisticated attack that exposed tens of millions of sensitive records, including background check files, social security numbers, and fingerprint records.
EPIC has a particular interest in protecting individuals’ right to informational privacy. EPIC supports the right of individuals to keep confidential their personal health information. EPIC has filed several amicus briefs concerning the critical importance of limiting the collection and disclosure of sensitive medical data. This right is particularly important in light of the incomplete privacy protections provided by statute and the substantial risk of data breaches. EPIC argued in its brief that NASA may not compel rocket scientists to disclose personal health information as a condition of employment.
The Ninth Circuit’s determination in the present case protected the informational privacy of scientists working at the Jet Propulsion Laboratory. Now that the Court has overruled the Ninth Circuit, government scientists must disclose sensitive, personal information that is insufficiently protected by the Privacy Act and at substantial risk of disclosure.
- Supreme Court Opinion (PDF)
- Audio Recording of Oral Argument (MP3)
- Transcript of Oral Argument (PDF)
- “Friend of the Court” Brief for EPIC (PDF)
- Brief for Petitioner (PDF)
- Brief for Respondents (PDF)
- Reply Brief for Petitioner (PDF)
- NASA v. Nelson Docket
- Grant of Certiorari (PDF)
- Questions Presented (PDF)
Certiorari-Stage Documents (PDFs)
Ninth Circuit Court of Appeals
- Opinion Below (Denial for Panel Rehearing and Rehearing en Banc)
- Superseding Opinion
- Initial Opinion
- Order Granting Injunction Pending Appeal
Supreme Court Precedent
- Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869 (1977)
- Nixon v. Administrator of General Services, 433 U.S. 425, 97 S. Ct. 2777 (1977)
Circuit Court Opinions on Informational Privacy
- Borucki v. Ryan, 827 F.2d 836 (1st Cir. 1987)
- Barry v. City of New York, 712 F.2d 1554 (2d Cir. 1983)
- United States v. Westinghouse, 638 F.2d 570 (3d Cir. 1980)
- Greenville Women’s Clinic v. Comm’r, S. C. Dep’t of Health & Env’t Control, 317 F.3d 357 (4th Cir. 2002)
- Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978)
- J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981); Lambert v. Hartman, 517 F.3d 433 (6th Cir. 2008)
- Denius v. Dunlap, 209 F.3d 944 (7th Cir. 2000)
- Tucson Woman’s Clinic v. Eden, 379 F.3d 531 (9th Cir. 2004)
- Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986)
- Tavoulareas v. Washington Post, Co., 724 F.2d 1010 (U.S. App. D.C. 1984)
Law Review Articles and Books on Informational Privacy
- Protecting Privacy in Surveillance Societies (1998), David H. Flaherty
- At-Home Spying: Privacy Wanes as Technology Gains; Surveillance may be legal, but is that the only standard?, Gary T. Marx, Commentary, Los Angeles Times, May 28, 2002
- Privacy in Context: Technology, Policy, and the Integrity of Social Life Helen Nissenbaum (2010)
- Cyberspace Privacy: A Primer and Proposal, Jerry Kang, 26 Hum. Rts. 3 (1999)
- Informational Privacy in Cyberspace Transactions, Jerry Kang, 50 STAN. L. REV. 1193 (1998)
- Examined Lives: Informational Privacy and the Subject as Object, Julie E. Cohen, 52 Stanford Law Review 1373 (2000)
- Privacy As Intellectual Property, Pamela Samuelson, 52 Stanford Law Review 1125 (2000)
- The Big Picture, Peter G. Neumann, Communications of the ACM, Sept. 2004
- Our Vanishing Privacy and What You Can Do To Protect Yours, Robert Ellis Smith (1993)
- Privacy on the Line: The Politics of Wiretapping and Encryption, Whitfield Diffie & Susan Landau (1998)